AMENDMENTS TO THE CALIFORNIA RULES OF COURT Adopted by the Judicial Council on March 15, 2019, effective on April 25, 2019 Rule 4.571. Filing of petition in the superior court .................................................... 2 1 Rule 4.572. Transfer of petitions ............................................................................... 4 2 Rule 4.573. Proceedings after the petition is filed ..................................................... 4 3 Rule 4.574. Proceedings following an order to show cause ...................................... 5 4 Rule 4.575.

Decision on death penalty–related habeas corpus petition ..................... 7 5 Rule 4.576. Successive petitions ................................................................................ 7 6 Rule 4.577. Transfer of files ...................................................................................... 8 7

Chapter 4. Habeas Corpus Appeals and Writs ............................................................... 8 8

Article 1. Habeas Corpus Proceedings Not Related to Judgment of Death ................... 8 9 Rule 8.388. Appeal from order granting relief by writ of habeas corpus .................. 8 10

Article 2. Appeals From Superior Court Decisions in Death Penalty–Related Habeas 11 Corpus Proceedings ........................................................................................................ 8 12 Rule 8.390. Application ............................................................................................. 9 13 Rule 8.391. Qualifications and appointment of counsel by the Court of Appeal ...... 9 14 Rule 8.392. Filing the appeal; certificate of appealability ......................................... 9 15 Rule 8.393.

Time to appeal ...................................................................................... 13 16 Rule 8.394. Stay of execution on appeal.................................................................. 13 17 Rule 8.395. Record on appeal .................................................................................. 13 18 Rule 8.396. Briefs by parties and amici curiae ........................................................ 18 19 Rule 8.397.

Claim of ineffective assistance of trial counsel not raised in the superior 20 court .......................................................................................................................... 21 21 Rule 8.398. Finality.................................................................................................. 24 22 23 24

Rule 4.571. Filing of petition in the superior court 1 2 (

a) Petition 3 4

(1) A petition and supporting memorandum must comply with this rule and, 5 except as otherwise provided in this rule, with rules 2.100–2.117 relating to 6 the form of papers. 7 8

(2) A memorandum supporting a petition must comply with rule 3.1113(b), (c), 9 (f), (h), (i), and (l). 10 11

(3) The petition and supporting memorandum must support any reference to a 12 matter in the supporting documents or declarations, or other supporting 13 materials, by a citation to its index number or letter and page and, if 14 applicable, the paragraph or line number. 15 16 (

b) Supporting documents 17 18

(1) The record prepared for the automatic appeal, including any exhibits admitted 19 in evidence, refused, or lodged, and all briefs, rulings, and other documents 20 filed in the automatic appeal are deemed part of the supporting documents for 21 the petition. 22 23

(2) The petition must be accompanied by a copy of any petition, excluding 24 exhibits, pertaining to the same judgment and petitioner that was previously 25 filed in any state court or any federal court, along with any order in a 26 proceeding on such a petition that disposes of any claim or portion of a claim. 27 28

(3) If the petition asserts a claim that was the subject of a hearing, the petition 29 must be accompanied by a certified transcript of that hearing. 30 31

(4) If any supporting documents have previously been filed in the same superior 32 court in which the petition is filed and the petition so states and identifies the 33 documents by case number, filing date and title of the document, copies of 34 these documents need not be included in the supporting documents. 35 36

(5) Rule 8.486(c)(1) governs the form of any supporting documents 37 accompanying the petition. 38 39

(6) If any supporting documents accompanying the petition or any subsequently 40 filed paper are sealed, rules 2.550 and 2.551 govern. Notwithstanding rule 41 8.45(a), if any supporting documents accompanying the petition or any 42 subsequently filed papers are confidential records, rules 8.45(b), (c), and 8.47 43

govern, except that rules 2.550 and 2.551 govern the procedures for making a 1 motion or application to seal such records. 2 3

(7) When other laws establish specific requirements for particular types of sealed 4 or confidential records that differ from the requirements in this subdivision, 5 those specific requirements supersede the requirements in this subdivision. 6 7 (

c) Filing and service 8 9

(1) If the petition is filed in paper form, an original and one copy must be filed, 10 along with an original and one copy of the supporting documents. 11 12

(2) A court that permits electronic filing must specify any requirements 13 regarding electronically filed petitions as authorized under rules 2.250 et seq. 14 15

(3) Petitioner must serve one copy of the petition and supporting documents on 16 the district attorney, the Attorney General, and on any assisting entity or 17 counsel. 18 19 (

d) Noncomplying filings 20 21 The clerk must file an attorney’s petition not complying with this rule if it 22 otherwise complies with the rules of court, but the court may notify the attorney 23 that it may strike the petition or impose a lesser sanction if the petition is not 24 brought into compliance within a stated reasonable time of not less than five court 25 days. 26 27 (

e) Ruling on the petition 28 29

(1) The court must rule on the petition within 60 days after the petition is filed 30 with the court or transferred to the court from another superior court. 31 32

(2) For purposes of this subdivision, the court rules on a petition by: 33 34 (

A) Requesting an informal response to the petition; 35 36 (

B) Issuing an order to show cause; or 37 38 (

C) Denying the petition. 39 40

(3) If the court requests an informal response, it must issue an order to show 41 cause or deny the petition within 30 days after the filing of the reply, or if 42

none is filed, after the expiration of the time for filing the reply under rule 1 4.573(a)(3). 2 3 Rule 4.571 adopted effective April 25, 2019. 4 5 Rule 4.572. Transfer of petitions 6 7 Unless the court finds good cause for it to consider the petition, a petition subject to this 8

article that is filed in a superior court other than the court that imposed the sentence must 9 be transferred to the court that imposed the sentence within 21 days of filing. The court in 10 which the petition was filed must enter an order with the basis for its transfer or its 11 finding of good cause for retaining the petition. 12 13 Rule 4.572 adopted effective April 25, 2019. 14 15 Rule 4.573. Proceedings after the petition is filed 16 17 (

a) Informal response and reply 18 19

(1) If the court requests an informal written response, it must serve a copy of the 20 request on the district attorney, the Attorney General, the petitioner and on 21 any assisting entity or counsel. 22 23

(2) The response must be served and filed within 45 days of the filing of the 24 request, or a later date if the court so orders. One copy of the informal 25 response and any supporting documents must be served on the petitioner and 26 on any assisting entity or counsel. If the response and supporting documents 27 are served in paper form, two copies must be served on the petitioner. 28 29

(3) If a response is filed, the court must notify the petitioner that a reply may be 30 served and filed within 30 days of the filing of the response, or a later date if 31 the court so orders. The court may not deny the petition until that time has 32 expired. 33 34

(4) If a reply is filed, the petitioner must serve one copy of the reply and any 35 supporting documents on the district attorney, the Attorney General, and on 36 any assisting entity or counsel. 37 38

(5) The formatting of the response, reply, and any supporting documents must 39 comply with the applicable requirements for petitions in rule 4.571(

a) and 40 (b). The filing of the response, reply, and any supporting documents must 41 comply with the requirements for petitions in rule 4.571(c)(1) and (2). 42 43

(6) On motion of any party or on the court’s own motion, for good cause stated 1 in the order, the court may extend the time for a party to perform any act 2 under this subdivision. If a party requests extension of a deadline in this 3 subdivision, the party must explain the additional work required to meet the 4 deadline. 5 6 (

b) Order to show cause 7 8 If the petitioner has made the required prima facie showing that petitioner is 9 entitled to relief, the court must issue an order to show cause. An order to show 10 cause does not grant the relief sought in the petition. 11 12 Rule 4.573 adopted effective April 25, 2019. 13 14 Rule 4.574. Proceedings following an order to show cause 15 16 (

a) Return 17 18

(1) Any return must be served and filed within 45 days after the court issues the 19 order to show cause, or a later date if the court so orders. 20 21

(2) The formatting of the return and any supporting documents must comply with 22 the applicable requirements for petitions in rule 4.571(

a) and (b). The filing 23 of the return and any supporting documents must comply with the 24 requirements for petitions in rule 4.571(c)(1) and (2). 25 26

(3) A copy of the return and any supporting documents must be served on the 27 petitioner and on any assisting entity or counsel. If the return is served in 28 paper form, two copies must be served on the petitioner. 29 30

(4) Any material allegation of the petition not controverted by the return is 31 deemed admitted for purposes of the proceeding. 32 33 (

b) Denial 34 35

(1) Unless the court orders otherwise, within 30 days after the return is filed, or a 36 later date if the court so orders, the petitioner may serve and file a denial. 37 38

(2) The formatting of the denial and any supporting documents must comply 39 with the applicable requirements for petitions in rule 4.571(

a) and (b). The 40 filing of the denial and any supporting documents must comply with the 41 requirements for petitions in rule 4.571(c)(1) and (2). 42 43

(3) A copy of the reply and any supporting documents must be served on the 1 district attorney, the Attorney General, and on any assisting entity or counsel. 2 3

(4) Any material allegation of the return not controverted in the denial is deemed 4 admitted for purposes of the proceeding. 5 6 (

c) Ruling on the petition 7 8 Within 60 days after filing of the denial, or if none is filed, after the expiration of 9 the deadline for filing the denial under (b)(1), the court must either grant or deny 10 the relief sought by the petition or set an evidentiary hearing. 11 12 (

d) Evidentiary hearing 13 14

(1) An evidentiary hearing is required if, after considering the verified petition, 15 the return, any denial, any affidavits or declarations under penalty of perjury, 16 exhibits, and matters of which judicial notice may be taken, the court finds 17 there is a reasonable likelihood that the petitioner may be entitled to relief 18 and the petitioner’s entitlement to relief depends on the resolution of an issue 19 of fact. 20 21

(2) The court must assign a court reporter who uses computer-aided transcription 22 equipment to report all proceedings under this subdivision. 23 24 (

A) All proceedings under this subdivision, whether in open court, in 25 conference in the courtroom, or in chambers, must be conducted on the 26 record with a court reporter present. The court reporter must prepare 27 and certify a daily transcript of all proceedings. 28 29 (

B) Any computer-readable transcript produced by court reporters under 30 this subdivision must conform to the requirements of Code of Civil 31 Procedure

section 271. 32 33

(3) Rule 3.1306(

c) governs judicial notice. 34 35 (

e) Additional briefing 36 37 The court may order additional briefing during or following the evidentiary 38 hearing. 39 40 (

f) Submission of cause 41 42

For purposes of

article VI,

section 19, of the California Constitution, a death 1 penalty–related habeas corpus proceeding is submitted for decision at the 2 conclusion of the evidentiary hearing, if one is held. If there is supplemental 3 briefing after the conclusion of the evidentiary hearing, the matter is submitted 4 when all supplemental briefing is filed with the court. 5 6 (

g) Extension of deadlines 7 8 On motion of any party or on the court’s own motion, for good cause stated in the 9 order, the court may extend the time for a party to perform any act under this rule. 10 If a party requests extension of a deadline in this rule, the party must explain the 11 additional work required to meet the deadline. 12 13 Rule 4.574 adopted effective April 25, 2019. 14 15 Rule 4.575.

Decision on death penalty–related habeas corpus petition 16 17 On decision of the initial petition, the court must prepare and file a statement of decision 18 specifying its order and explaining the factual and legal basis for its decision. The clerk 19 of the court must serve a copy of the decision on the petitioner, the district attorney, the 20 Attorney General, the clerk/executive officer of the Supreme Court, the clerk/executive 21 officer of the Court of Appeal, and on any assisting entity or counsel. 22 23 Rule 4.575 adopted effective April 25, 2019. 24 25 Rule 4.576. Successive petitions 26 27 (

a) Notice of intent to dismiss 28 29 Before dismissing a successive petition under Penal Code

section 1509(d), a 30 superior court must provide notice to the petitioner and an opportunity to respond. 31 32 (

b) Certificate of appealability 33 34 The superior court must grant or deny a certificate of appealability concurrently 35 with the issuance of its decision denying relief on a successive death penalty– 36 related habeas corpus petition. Before issuing its decision, the superior court may 37 order the parties to submit arguments on whether a certificate of appealability 38 should be granted. If the superior court grants a certificate of appealability, the 39 certificate must identify the substantial claim or claims for relief shown by the 40 petitioner and the substantial claim that the requirements of Penal Code

section 41 1509(

d) have been met. The superior court clerk must send a copy of the certificate 42 to the petitioner, the Attorney General, the district attorney, the clerk/executive 43

officer of the Court of Appeal and the district appellate project for the appellate 1 district in which the superior court is located, the assisting counsel or entity, and 2 the clerk/executive officer of the Supreme Court. The superior court clerk must 3 send the certificate of appealability to the Court of Appeal when it sends the notice 4 of appeal under rule 8.392(c). 5 6 Rule 4.576 adopted effective April 25, 2019. 7 8 Rule 4.577.

Transfer of files 9 10 Counsel for the petitioner must deliver all files counsel maintained related to the 11 proceeding to the attorney representing petitioner in any appeal taken from the 12 proceeding. 13 14 Rule 4.577 adopted effective April 25, 2019. 15 16 17

Chapter 4. Habeas Corpus Appeals and Writs 18 19

Article 1. Habeas Corpus Proceedings Not Related to Judgment of Death 20 21 Rule 8.388. Appeal from order granting relief by writ of habeas corpus 22 23 (

a) Application 24 25 Except as otherwise provided in this rule, rules 8.304–8.368 and 8.508 govern 26 appeals under Penal Code

section 1506 or 1507 from orders granting all or part of 27 the relief sought in a petition for writ of habeas corpus. This rule does not apply to 28 appeals under Penal Code

section 1509.1 from superior court decisions in death 29 penalty–related habeas corpus proceedings. 30 31 (Subd (

a) amended effective April 25, 2019; previously amended effective January 1, 32 2007.) 33 34 (b) * * * 35 36 37 Rule 8.388 amended effective April 25, 2019; repealed and adopted as rule 39.2 effective January 38 1, 2005; previously amended and renumbered as rule 8.388 effective January 1, 2007. 39

Article 2. Appeals From Superior Court Decisions in Death Penalty–Related 40 Habeas Corpus Proceedings 41 42

Rule 8.390. Application 1 2 (

a) Application 3 4 The rules in this

article apply only to appeals under Penal Code

section 1509.1 5 from superior court decisions in death penalty–related habeas corpus proceedings. 6 7 (

b) General application of rules for criminal appeals 8 9 Except as otherwise provided in this article, rules 8.300, 8.316, 8.332, 8.340–8.346, 10 and 8.366–8.368 govern appeals subject to the rules in this article. 11 12 Rule 8.390 adopted effective April 25, 2019. 13 14 Rule 8.391. Qualifications and appointment of counsel by the Court of Appeal 15 16 (

a) Qualifications 17 18 To be appointed by the Court of Appeal to represent an indigent petitioner not 19 represented by the State Public Defender in an appeal under this article, an attorney 20 must: 21 22

(1) Meet the minimum qualifications established by rule 8.652 for attorneys to be 23 appointed to represent a person in a death penalty–related habeas corpus 24 proceeding, including being willing to cooperate with an assisting counsel or 25 entity that the court may designate; 26 27

(2) Be familiar with appellate practices and procedures in the California courts, 28 including those related to death penalty appeals; and 29 30

(3) Not have represented the petitioner in the habeas corpus proceedings that are 31 the subject of the appeal unless the petitioner and counsel expressly request, 32 in writing, continued representation. 33 34 (

b) Designation of assisting entity or counsel 35 36 Either before or at the time it appoints counsel, the court must designate an 37 assisting entity or counsel. 38 39 Rule 8.391 adopted effective April 25, 2019. 40 41 Rule 8.392. Filing the appeal; certificate of appealability 42 43

(

a) Notice of appeal 1 2

(1) To appeal from a superior court decision in a death penalty–related habeas 3 corpus proceeding, the petitioner or the People must serve and file a notice of 4 appeal in that superior court. To appeal a decision denying relief on a 5 successive habeas corpus petition, the petitioner must also comply with (b). 6 7

(2) If the petitioner appeals, petitioner’s counsel, or, in the absence of counsel, 8 the petitioner, is responsible for signing the notice of appeal. If the People 9 appeal, the attorney for the People must sign the notice. 10 11 (

b) Appeal of decision denying relief on a successive habeas corpus petition 12 13

(1) The petitioner may appeal the decision of the superior court denying relief on 14 a successive death penalty–related habeas corpus petition only if the superior 15 court or the Court of Appeal grants a certificate of appealability under Penal 16 Code

section 1509.1(c). 17 18

(2) The petitioner must identify in the notice of appeal that the appeal is from a 19 superior court decision denying relief on a successive petition and indicate 20 whether the superior court granted or denied a certificate of appealability. 21 22

(3) If the superior court denied a certificate of appealability, the petitioner must 23 attach to the notice of appeal a request to the Court of Appeal for a certificate 24 of appealability. The request must identify the petitioner’s claim or claims for 25 relief and explain how the requirements of Penal Code

section 1509(

d) have 26 been met. 27 28

(4) On receiving the request for a certificate of appealability, the Court of Appeal 29 clerk must promptly file the request and send notice of the filing date to the 30 parties. 31 32

(5) The People need not file an answer to a request for a certificate of 33 appealability unless the court requests an answer. The clerk must promptly 34 send to the parties and the assisting entity or counsel copies of any order 35 requesting an answer and immediately notify the parties by telephone or 36 another expeditious method. Any answer must be served on the parties and 37 the assisting entity or counsel and filed within five days after the order is 38 filed unless the court orders otherwise. 39 40

(6) The Court of Appeal must grant or deny the request for a certificate of 41 appealability within 10 days of the filing of the request in that court. If the 42 Court of Appeal grants a certificate of appealability, the certificate must 43

identify the substantial claim or claims for relief shown by the petitioner. The 1 clerk must send a copy of the certificate or its order denying the request for a 2 certificate to: 3 4 (

A) The attorney for the petitioner or, if unrepresented, to the petitioner; 5 6 (

B) The district appellate project and, if designated, any assisting entity or 7 counsel other than the district appellate project; 8 9 (

C) The Attorney General; 10 11 (

D) The district attorney; 12 13 (

E) The superior court clerk; and 14 15 (

F) The clerk/executive officer of the Supreme Court. 16 17

(7) If both the superior court and the Court of Appeal deny a certificate of 18 appealability, the clerk/executive officer of the Court of Appeal must mark 19 the notice of appeal “Inoperative,” notify the petitioner, and send a copy of 20 the marked notice of appeal to the superior court clerk, the clerk/executive 21 officer of the Supreme Court, the district appellate project, and, if designated, 22 any assisting entity or counsel other than the district appellate project. 23 24 (

c) Notification of the appeal 25 26

(1) Except as provided in (2), when a notice of appeal is filed, the superior court 27 clerk must promptly—and no later than five days after the notice of appeal is 28 filed—send a notification of the filing to: 29 30 (

A) The attorney for the petitioner or, if unrepresented, to the petitioner; 31 32 (

B) The district appellate project and, if designated, any assisting entity or 33 counsel other than the district appellate project; 34 35 (

C) The Attorney General; 36 37 (

D) The district attorney; 38 39 (

E) The clerk/executive officer of the Court of Appeal; 40 41 (

F) The clerk/executive officer of the Supreme Court; 42 43

(

G) Each court reporter; and 1 2 (

H) Any primary reporter or reporting supervisor. 3 4

(2) If the petitioner is appealing from a superior court decision denying relief on 5 a successive petition and the superior court did not issue a certificate of 6 appealability, the clerk must not send the notification of the filing of a notice 7 of appeal to the court reporter or reporters unless the clerk receives a copy of 8 a certificate of appealability issued by the Court of Appeal under (b)(6). The 9 clerk must send the notification no later than five days after the superior court 10 receives the copy of the certificate of appealability. 11 12

(3) The notification must show the date it was sent, the number and title of the 13 case, and the dates the notice of appeal was filed and any certificate of 14 appealability was issued. If the information is available, the notification must 15 also include: 16 17 (

A) The name, address, telephone number, e-mail address, and California 18 State Bar number of each attorney of record in the case; and 19 20 (

B) The name of the party each attorney represented in the superior court. 21 22

(4) The notification to the clerk/executive officer of the Court of Appeal must 23 also include a copy of the notice of appeal, any certificate of appealability or 24 denial of a certificate of appealability issued by the superior court, and the 25 sequential list of reporters made under rule 2.950. 26 27

(5) A copy of the notice of appeal is sufficient notification under (1) if the 28 required information is on the copy or is added by the superior court clerk. 29 30

(6) The sending of a notification under (1) is a sufficient performance of the 31 clerk’s duty despite the discharge, disqualification, suspension, disbarment, 32 or death of the attorney. 33 34

(7) Failure to comply with any provision of this subdivision does not affect the 35 validity of the notice of appeal. 36 37 Rule 8.392 adopted effective April 25, 2019. 38 39 Advisory Committee Comment 40 41 Subdivision (b). This subdivision addresses issuance of a certificate of appealability by the Court 42 of Appeal. Rule 4.576(

b) addresses issuance of a certificate of appealability by the superior court. 43

1 2 Rule 8.393. Time to appeal 3 4 A notice of appeal under this

article must be filed within 30 days after the rendition of the 5 judgment or the making of the order being appealed. 6 7 Rule 8.393 adopted effective April 25, 2019. 8 9 Rule 8.394. Stay of execution on appeal 10 11 (

a) Application 12 13 Pending appeal under this article, the petitioner may apply to the reviewing court 14 for a stay of execution of the death penalty. The application must be served on the 15 People. 16 17 (

b) Interim relief 18 19 Pending its ruling on the application, the reviewing court may grant the relief 20 requested. The reviewing court must notify the superior court under rule 8.489 of 21 any stay that it grants. Notification must also be sent to the clerk/executive officer 22 of the Supreme Court. 23 24 Rule 8.394 adopted effective April 25, 2019. 25 26 Rule 8.395. Record on appeal 27 28 (

a) Contents 29 30 In an appeal under this article, the record must contain: 31 32

(1) A clerk’s transcript containing: 33 34 (

A) The petition; 35 36 (

B) Any informal response to the petition and any reply to the informal 37 response; 38 39 (

C) Any order to show cause; 40 41 (

D) Any reply, return, answer, denial, or traverse; 42 43

(

E) All supporting documents under rule 4.571, including the record 1 prepared for the automatic appeal and all briefs, rulings, and other 2 documents filed in the automatic appeal; 3 4 (

F) Any other documents and exhibits submitted to the court, including any 5 transcript of a sound or sound-and-video recording tendered to the 6 court under rule 2.1040 and any visual aids submitted to the court; 7 8 (

G) Any written communication between the court and the parties, 9 including printouts of any e-mail messages and their attachments; 10 11 (

H) All court minutes; 12 13 (

I) Any statement of decision required by Penal Code

section 1509(

f) and 14 any other written decision of the court; 15 16 (

J) The order appealed from; 17 18 (

K) The notice of appeal; and 19 20 (

L) Any certificate of appealability issued by the superior court or the 21 Court of Appeal. 22 23

(2) A reporter’s transcript of any oral proceedings. 24 25 (

b) Stipulation for partial transcript 26 27 If counsel for the petitioner and the People stipulate in writing before the record is 28 certified that any part of the record is not required for proper determination of the 29 appeal, that part need not be prepared or sent to the reviewing court. 30 31 (

c) Preparation of record 32 33

(1) The reporter and the clerk must begin preparing the record immediately after 34 the superior court issues the decision on an initial petition under Penal Code 35

section 1509. 36 37

(2) If either party appeals from a superior court decision on a successive petition 38 under Penal Code

section 1509.1(c): 39 40 (

A) The clerk must begin preparing the clerk’s transcript immediately after 41 the filing of the notice of appeal or, if one is required, the superior 42 court’s issuance of a certificate of appealability or the clerk’s receipt of 43

a copy of a certificate of appealability issued by the Court of Appeal 1 under rule 8.391(b)(5), whichever is later. If a certificate of 2 appealability is required to appeal the decision of the superior court, the 3 clerk must not begin preparing the clerk’s transcript until a certificate 4 of appealability has issued. 5 6 (

B) The reporter must begin preparing the reporter’s transcript immediately 7 on being notified by the clerk under rule 8.392(

c) that the notice of 8 appeal has been filed. 9 10 (

d) Clerk’s transcript 11 12

(1) Within 30 days after the clerk is required to begin preparing the transcript, 13 the clerk must complete preparation of an original and four copies of the 14 clerk’s transcript. 15 16

(2) On request, the clerk must prepare an extra copy for the district attorney or 17 the Attorney General, whichever is not counsel for the People on appeal. 18 19

(3) The clerk must certify as correct the original and all copies of the clerk’s 20 transcript. 21 22 (

e) Reporter’s transcript 23 24

(1) The reporter must prepare an original and the same number of copies of the 25 reporter’s transcript as (

d) requires of the clerk’s transcript, and must certify 26 each as correct. 27 28

(2) As soon as the transcripts are certified, but no later than 30 days after the 29 reporter is required to begin preparing the transcript, the reporter must deliver 30 the original and all copies to the superior court clerk. 31 32

(3) Any portion of the transcript transcribed during superior court habeas corpus 33 proceedings must not be retyped unless necessary to correct errors, but must 34 be repaginated and combined with any portion of the transcript not previously 35 transcribed. Any additional copies needed must not be retyped but, if the 36 transcript is in paper form, must be prepared by photocopying or an 37 equivalent process. 38 39

(4) In a multireporter case, the clerk must accept any completed portion of the 40 transcript from the primary reporter one week after the time prescribed by (2) 41 even if other portions are uncompleted. The clerk must promptly pay each 42

reporter who certifies that all portions of the transcript assigned to that 1 reporter are completed. 2 3 (

f) Extension of time 4 5

(1) Except as provided in this rule, rules 8.60 and 8.63 govern requests for 6 extension of time to prepare the record. 7 8

(2) On request of the clerk or a reporter showing good cause, the superior court 9 may extend the time prescribed in (

d) or (

e) for preparing the clerk’s or 10 reporter’s transcript for no more than 30 days. If the superior court orders an 11 extension, the order must specify the reason justifying the extension. The 12 clerk must promptly send a copy of the order to the reviewing court. 13 14

(3) For any further extension, the clerk or reporter must file a request in the 15 reviewing court showing good cause. 16 17

(4) A request under (2) or (3) must be supported by: 18 19 (

A) A declaration showing good cause. The court may presume good cause 20 if the clerk’s and reporter’s transcripts combined will likely exceed 21 10,000 pages, not including the supporting documents submitted with 22 the petition, any informal response, reply to the informal response, 23 return, answer, or traverse; and 24 25 (

B) In the case of a reporter’s transcript, certification by the superior court 26 presiding judge or a court administrator designated by the presiding 27 judge that an extension is reasonable and necessary in light of the 28 workload of all reporters in the court. 29 30 (

g) Form of record 31 32

(1) The reporter’s transcript must be in electronic form. The clerk is encouraged 33 to send the clerk’s transcript in electronic form if the court is able to do so. 34 35

(2) The clerk’s and reporter’s transcripts must comply with rules 8.45–8.47, 36 relating to sealed and confidential records, and rule 8.144. 37 38 (

h) Sending the transcripts 39 40

(1) When the clerk’s and reporter’s transcripts are certified as correct, the clerk 41 must promptly send: 42 43

(

A) The original transcripts to the reviewing court, noting the sending date 1 on each original; and 2 3 (

B) One copy of each transcript to: 4 5 (

i) Appellate counsel for the petitioner; 6 7 (ii) The assisting entity or counsel, if designated, or the district 8 appellate project; 9 10 (iii) The Attorney General or the district attorney, whichever is 11 counsel for the People on appeal; 12 13 (iv) The district attorney or Attorney General if requested under 14 (d)(2); and 15 16 (

v) The Governor. 17 18

(2) If the petitioner is not represented by appellate counsel when the transcripts 19 are certified as correct, the clerk must send that copy of the transcripts to the 20 assisting entity or counsel, if designated, or the district appellate project. 21 22 (

i) Supervision of preparation of record 23 24 The clerk/executive officer of the Court of Appeal, under the supervision of the 25 administrative presiding justice or the presiding justice, must take all appropriate 26 steps to ensure that superior court clerks and reporters promptly perform their 27 duties under this rule. This provision does not affect the responsibility of the 28 superior courts for the prompt preparation of appellate records. 29 30 (

j) Augmenting or correcting the record in the Court of Appeal 31 32 Rule 8.340 governs augmenting or correcting the record in the Court of Appeal, 33 except that copies of augmented or corrected records must be sent to those listed in 34 (h). 35 36 (

k) Judicial notice 37 38 Rule 8.252(

a) governs judicial notice in the reviewing court. 39 40 Rule 8.395 adopted effective April 25, 2019. 41 42

Rule 8.396. Briefs by parties and amici curiae 1 2 (

a) Contents and form 3 4

(1) Except as provided in this rule, briefs in appeals governed by the rules in this 5

article must comply as nearly as possible with rules 8.200 and 8.204. 6 7

(2) If, as permitted by Penal Code

section 1509.1(b), the petitioner wishes to 8 raise a claim in the appeal of ineffective assistance of trial counsel that was 9 not raised in the superior court habeas corpus proceedings, that claim must be 10 raised in the first brief filed by the petitioner. A brief containing such a claim 11 must comply with the additional requirements in rule 8.397. 12 13

(3) If the petitioner is appealing from a decision of the superior court denying 14 relief on a successive death penalty–related habeas corpus petition, the 15 petitioner may only raise claims in the briefs that were identified in the 16 certificate of appealability that was issued and any additional claims added by 17 the Court of Appeal as provided in Penal Code

section 1509.1(c). 18 19 (

b) Length 20 21

(1) A brief produced on a computer must not exceed the following limits, 22 including footnotes, except that if the presiding justice permits the appellant 23 to file an opening brief that exceeds the limit set in (1)(

A) or (3)(A), the 24 respondent’s brief may not exceed the same length: 25 26 (

A) Appellant’s opening brief: 102,000 words. 27 28 (

B) Respondent’s brief: 102,000 words. 29 30 (

C) Reply brief: 47,600 words. 31 32

(2) A brief under (1) must include a certificate by appellate counsel stating the 33 number of words in the brief; counsel may rely on the word count of the 34 computer program used to prepare the brief. 35 36

(3) A typewritten brief must not exceed the following limits, except that if the 37 presiding justice permits the appellant to file an opening brief that exceeds 38 the limit set in (1)(

A) or (3)(A), the respondent’s brief may not exceed the 39 same length: 40 41 (

A) Appellant’s opening brief: 300 pages. 42 43

(

B) Respondent’s brief: 300 pages. 1 2 (

C) Reply brief: 140 pages. 3 4

(4) The tables required under rule 8.204(a)(1), the cover information required 5 under rule 8.204(b)(10), a certificate under (2), any signature block, and any 6 attachment permitted under rule 8.204(

d) are excluded from the limits stated 7 in (1) and (3). 8 9

(5) A combined brief in an appeal governed by (

e) must not exceed double the 10 limit stated in (1) or (3). 11 12

(6) On application, the presiding justice may permit a longer brief for good 13 cause. 14 15 (

c) Time to file 16 17

(1) The appellant’s opening brief must be served and filed within 210 days after 18 either the record is filed or appellate counsel is appointed, whichever is later. 19 20

(2) The respondent’s brief must be served and filed within 120 days after the 21 appellant’s opening brief is filed. 22 23

(3) The appellant must serve and file a reply brief, if any, within 60 days after the 24 filing of respondent’s brief. 25 26

(4) If the clerk’s and reporter’s transcripts combined exceed 10,000 pages, the 27 time limits stated in (1) and (2) are extended by 15 days for each 1,000 pages 28 of combined transcript over 10,000 pages, up to 20,000 pages. The time 29 limits in (1) and (2) may be extended further by order of the presiding justice 30 under rule 8.60. 31 32

(5) The time to serve and file a brief may not be extended by stipulation, but only 33 by order of the presiding justice under rule 8.60. 34 35

(6) If a party fails to timely file an appellant’s opening brief or a respondent’s 36 brief, the clerk/executive officer of the Court of Appeal must promptly notify 37 the party in writing that the brief must be filed within 30 days after the notice 38 is sent, and that failure to comply may result in sanctions specified in the 39 notice. 40 41 (

d) Service 42 43

(1) The petitioner’s appellate counsel must serve each brief for the petitioner on 1 the assisting entity or counsel, the Attorney General, and the district attorney, 2 and must deliver a copy of each to the petitioner unless the petitioner requests 3 otherwise. 4 5

(2) The proof of service must state that a copy of the petitioner’s brief was 6 delivered to the petitioner or will be delivered in person to the petitioner 7 within 30 days after the filing of the brief, or counsel must file a signed 8 statement that the petitioner requested in writing that no copy be delivered. 9 10

(3) The People must serve each of their briefs on the appellate counsel for the 11 petitioner, the assisting entity or counsel, and either the district attorney or 12 the Attorney General, whichever is not representing the People on appeal. 13 14

(4) A copy of each brief must be served on the superior court clerk for delivery 15 to the superior court judge who issued the order being appealed. 16 17 (

e) When the petitioner and the People appeal 18 19 When both the petitioner and the People appeal, the petitioner must file the first 20 opening brief unless the reviewing court orders otherwise, and rule 8.216(b) 21 governs the contents of the briefs. 22 23 (

f) Amicus curiae briefs 24 25 Amicus curiae briefs may be filed as provided in rule 8.200(c), except that an 26 application for permission of the presiding justice to file an amicus curiae brief 27 must be filed within 14 days after the last appellant’s reply brief is filed or could 28 have been filed under (c), whichever is earlier. 29 30 Rule 8.396 adopted effective April 25, 2019. 31 32 Advisory Committee Comment 33 34 Subdivision (a)(3). This subdivision is intended to implement the sentence in Penal Code

section 35 1509.1(

c) providing that “[t]he jurisdiction of the court of appeal is limited to the claims 36 identified in the certificate [of appealability] and any additional claims added by the court of 37 appeal within 60 days of the notice of appeal.” 38 39 Subdivision (b)(4). This subdivision specifies certain items that are not counted toward the 40 maximum brief length. Signature blocks referred to in this provision include not only the 41 signatures, but also the printed names, titles, and affiliations of any attorneys filing or joining in 42 the brief, which may accompany the signature. 43

1 2 Rule 8.397. Claim of ineffective assistance of trial counsel not raised in the superior 3 court 4 5 (

a) Application 6 7 This rule governs claims under Penal Code

section 1509.1(

b) of ineffective 8 assistance of trial counsel not raised in the superior court habeas corpus proceeding 9 giving rise to an appeal under this article. 10 11 (

b) Discussion of claim in briefs 12 13

(1) A claim subject to this rule must be raised in the first brief filed by the 14 petitioner. 15 16

(2) All discussion of claims subject to this rule must be addressed in a separate 17 part of the brief under a heading identifying this part as addressing claims of 18 ineffective assistance of trial counsel that were not raised in a superior court 19 habeas corpus proceeding. 20 21

(3) Discussion of each claim within this part of the brief must be under a separate 22 subheading identifying the claim. Petitioner’s brief must include a

summary 23 of the claim under the subheading, and each claim must be supported by 24 argument and, if possible, by citation of authority. 25 26

(4) This part of the brief may include references to matters: 27 28 (

A) In the record on appeal prepared under rule 8.395. Any reference to a 29 matter in the record must be supported by a citation to the volume and 30 page number of the record where the matter appears. 31 32 (

B) Of which the court has taken judicial notice. 33 34 (

C) In a proffer required under (c). Any reference to a matter in a proffer 35 must be supported by a citation to its index number or letter and page. 36 37 (

c) Proffer 38 39

(1) A brief raising a claim under Penal Code

section 1509.1(

b) of ineffective 40 assistance of trial counsel not raised in a superior court habeas corpus 41 proceeding must be accompanied by a proffer of any reasonably available 42 documentary evidence supporting the claim that is not in either the record on 43

appeal prepared under rule 8.395 or matters of which the court has taken 1 judicial notice. A brief responding to such a claim must be accompanied by a 2 proffer of any reasonably available documentary evidence the People are 3 relying on that is not in the petitioner’s proffer, the record on appeal prepared 4 under rule 8.395, or matters of which the court has taken judicial notice. 5 6 (

A) If a brief raises a claim that was the subject of an evidentiary hearing, 7 the proffer must include a certified transcript of that hearing. 8 9 (

B) Evidence may be in the form of affidavits or declarations under penalty 10 of perjury. 11 12

(2) The proffer must comply with the following formatting requirements: 13 14 (

A) The pages must be consecutively numbered. 15 16 (

B) It must begin with a table of contents listing each document by its title 17 and its index number or letter. If a document has attachments, the table 18 of contents must give the title of each attachment and a brief 19 description of its contents. 20 21 (

C) If submitted in paper form: 22 23 (

i) It must be bound together at the end of the brief or in separate 24 volumes not exceeding 300 pages each. 25 26 (ii) It must be index-tabbed by number or letter. 27 28

(3) The clerk must file any proffer not complying with (2), but the court may 29 notify the filer that it may strike the proffer and the portions of the brief 30 referring to the proffer if the documents are not brought into compliance 31 within a stated reasonable time of not less than five court days. 32 33

(4) If any documents in the proffer are sealed or confidential records, rules 8.45– 34 8.47 govern these documents. 35 36 (

d) Evidentiary hearing 37 38 An evidentiary hearing is required if, after considering the briefs, the proffer, and 39 matters of which judicial notice may be taken, the court finds there is a reasonable 40 likelihood that the petitioner may be entitled to relief and the petitioner’s 41 entitlement to relief depends on the resolution of an issue of fact. The reviewing 42 court may take one of the following actions: 43

(1) Order a limited remand to the superior court to consider the claim under 2 Penal Code

section 1509.1(b). The order for limited remand vests jurisdiction 3 over the claim in the superior court, which must proceed under rule 4 4.574(d)(2)–(3) and (e)–(

g) and rule 4.575 for death penalty–related habeas 5 corpus proceedings in the superior court. The clerk/executive officer of the 6 Court of Appeal must send a copy of any such order to the clerk/executive 7 officer of the Supreme Court. 8 9

(2) Appoint a referee to conduct the hearing and make recommended findings of 10 fact. 11 12

(3) Conduct the hearing itself or designate a justice of the court to conduct the 13 hearing. 14 15 (

e) Procedures following limited remand 16 17

(1) If the reviewing court orders a limited remand to the superior court to 18 consider a claim under Penal Code

section 1509.1(b), it may stay the 19 proceedings on the remainder of the appeal pending the decision of the 20 superior court on remand. The clerk/executive officer of the Court of Appeal 21 must send a copy of any such stay to the clerk/executive officer of the 22 Supreme Court. 23 24

(2) If any party wishes to appeal from the superior court decision on remand, the 25 party must file a notice of appeal as provided in rule 8.392. 26 27

(3) If an appeal is filed from the superior court decision on remand, the 28 reviewing court may consolidate this appeal with any pending appeal under 29 Penal Code

section 1509.1 from the superior court’s decisions in the same 30 habeas corpus proceeding. A copy of any consolidation order must be 31 promptly sent to the superior court clerk. The superior court clerk must then 32 augment the record on appeal to include all items listed in rule 8.395(

a) from 33 the remanded proceedings. 34 35 Rule 8.397 adopted effective April 25, 2019. 36 37 Advisory Committee Comment 38 39 Penal Code

section 1509.1(

b) states when a claim of ineffective assistance of trial counsel not 40 raised in the superior court habeas corpus proceeding may be raised in an appeal under this 41 article. 42 43

1 Rule 8.398. Finality 2 3 (

a) General rule 4 5 Except as otherwise provided in this rule, rule 8.366(

b) governs the finality of a 6 Court of Appeal decision in a proceeding under this article. 7 8 (

b) Denial of certificate of appealability 9 10 The Court of Appeal’s denial of an application for a certificate of appealability in a 11 proceeding under this

article is final in that court on filing. 12 13 Rule 8.398 adopted effective April 25, 2019. 14 15