3rd District asks appellate lawyers to identify cases to be expedited

The Central California Appellate Program has called on its panel attorneys to help identify "new criminal cases that may benefit from being expedited through the appellate process."

The email explained how criminal appellants have sometimes served their full sentences before an appellate court agrees they were innocent or should have had a shorter prison term. Attorneys have recently highlighted such cases in the 3rd District Court of Appeal.

An officer of the court said Friday it had suggested the appellate program's request.

Attorneys received the email on Oct. 29. The program assigns attorneys for "indigent representation in criminal, juvenile, dependency and mental health appeals" in the 3rd and 5th appellate districts.

For nearly a year, veteran appellate attorney Jon B. Eisenberg has been seeking to draw attention to long-delayed cases in the 3rd District, including criminal appeals decided in favor of defendants after they had already served their sentences. He has filed two unsuccessful petitions asking the California Supreme Court to transfer or expedite cases before the 3rd District court. Eisenberg also has a pending complaint with the Commission on Judicial Performance. He is retiring from practice at the end of this year.

"CCAP is now attempting to identify new criminal cases that may benefit from being expedited through the appellate process," said the email to panel attorneys. "We are undertaking this effort to help ensure that appellants receive the benefit of any relief they obtain on appeal. Sometimes the Court of Appeal concludes the trial court erred (e.g., by imposing an unlawful sentence or unlawful conditions of probation), but the appellant may not gain any actual benefit from the decision if he or she has served the sentence or completed the probationary period before the Court of Appeal issues its decision in the case."

The program now has a webpage calling for panel attorneys to flag cases where a decision might come too late to help a defendant. This includes people facing short sentences or cases where a defendant might have probation revoked. The page also urges attorneys to identify cases that might be resolved quickly or are being held up only by missing records.

Representatives of the program did not respond to a call and email seeking comment.

Colette M. Bruggman, the assistant clerk and executive officer for the 3rd District, emailed a statement Friday confirming it asked the program to email attorneys. It said, "In our screening of cases prior to assignment we attempt to identify appeals that should be expedited in light of the duration of sentences imposed and the likelihood of prevailing." states the email. "That task can be complicated given the volume of cases and complexity of issues raised. We suggested to CCAP that their attorneys should make efforts to identify such cases and take appropriate steps to expedite the appeal by seeking calendar preference or taking other steps to facilitate an early decision. We applaud CCAP's efforts in this regard."

"I hope it helps," Eisenberg said by email on Friday. "The 3rd District has an unfortunate history of granting motions for preference without actually giving it."

He added, "Sometimes the court has granted such motions but then taken many more months or years to schedule oral argument; sometimes the court has denied such motions even though preference was statutorily mandated preference; sometimes the court has never ruled on such motions at all."

Eisenberg pointed to People v. Mullins, C079303 (Cal. App. 3rd, filed April 20, 2015). It took over four years from the time the case was fully briefed until the court issued its opinion. The defendant's attorney, Fresno based Robert Navarro, had argued his client should have been sentenced to concurrent rather than consecutive sentences under SB 1383, a 2018 law that changed the rules for felony enhancements.

Navarro filed a motion for calendar preference and expedited review on March 11, 2019. The court denied the motion as moot 11 months later, about two weeks before it issued its final opinion remanding the matter for reconsideration under SB 1383. Navarro said he has not experienced similar delays appearing in front of other appellate districts.

"They didn't rule on it until they issued the opinion," Navarro said when reached Friday. "It wasn't much help. ... They denied it was moot a year later, which is not exactly expedient."

Navarro confirmed he had received the email, as did C. Athena Roussos. The Elk Grove attorney, who has discussed delays in the 3rd District, said she had not flagged any cases yet.

"I applaud CCAP for this comprehensive policy," Roussos said. "I think it will help expedite cases and achieve justice for some of the most disadvantaged people in our criminal justice system. Credit to Jon Eisenberg for his hard work in bringing this issue to the forefront, as well as to CCAP for providing clear procedures to address this problem."