AMENDMENTS TO THE CALIFORNIA RULES OF COURT Adopted by the Judicial Council on October 28, 2011, effective on October 28, 2011 Rule 4.540. Revocation of postrelease community supervision ........................................ 2 Rule 4.541. Supervising agency reports ............................................................................ 6 Rule 8.25. Service, and filing, and filing fees .................................................................... 8 Rule 8.26. Waiver of fees and costs ................................................................................. 11 Rule 8.50.

Applications.................................................................................................... 12 Rule 8.54. Motions ........................................................................................................... 13 Rule 8.200. Briefs by parties and amici curiae ................................................................ 13 Rule 8.487. Opposition and Attorney General amicus briefs .......................................... 13 Rule 8.496. Review of Public Utilities Commission cases .............................................. 14 Rule 8.498.

Review of Agricultural Labor Relations Board and Public Employment Relations Board cases ....................................................................................................... 14 Rule 8.500. Petition for review ........................................................................................ 14 Rule 8.520. Briefs by parties and amici curiae; judicial notice ....................................... 15

2 Division 6. Postconviction, Postrelease, and Writs 1 Title 4, Criminal Rules— Division 6, Postconviction, Postrelease, and Writs; amended effective 2 October 28, 2011. 3 4

Chapter 2. Postrelease 5 6 Title 4, Criminal Rules— Division 6, Postconviction, Postrelease, and Writs —

Chapter 2, Postrelease; 7 adopted effective October 28, 2011. 8 9 Rule 4.540. Revocation of postrelease community supervision 10 11 (

a) Application 12 13 This rule applies to petitions for revocation of postrelease community supervision 14 under Penal Code

section 3455. 15 16 (

b) Definitions 17 18 As used in this chapter: 19 20 (1) “Supervised person” means any person subject to community supervision 21 under Penal Code

section 3451. 22 23 (2) “Court” includes any hearing officer appointed by a superior court and 24 authorized to conduct revocation proceedings under Government Code 25

section 71622.5. 26 27 (3) “Supervising agency” means the county agency designated as the supervising 28 agency by the board of supervisors under Penal Code

section 3451. 29 30 (

c) Petition for revocation 31 32

(1) Petitions for revocation must be filed by the supervising agency at the 33 location designated by the superior court in the county in which the person is 34 supervised. 35 36

(2) The supervising agency may file a petition for revocation only after all of the 37 following have occurred: 38 39 (

A) The supervising agency has established probable cause to believe the 40 supervised person has violated a term or condition of community 41 supervision; 42 43

3 (

B) The supervising agency has determined, following application of its 1 assessment processes, that intermediate sanctions without court 2 intervention as authorized by Penal Code

section 3454(

b) are not 3 appropriate responses to the alleged violation; and 4 5 (

C) The supervising agency has informed the supervised person that he or 6 she is entitled to the assistance of counsel and, if he or she desires but is 7 unable to employ counsel, the supervising agency has referred the 8 matter to the public defender or other person or agency designated by 9 the county to represent supervised persons. 10 11

(3) Petitions for revocation must be made on Petition for Revocation of 12 Community Supervision (form CR-300) and must include a written report 13 from the supervising agency that includes the declaration and information 14 required under rule 4.541. 15 16

(4) Upon filing the petition, the supervising agency must provide copies of the 17 petition and written report to the prosecutor and the supervised person’s 18 counsel or, if unrepresented, to the supervised person. 19 20 (

d) Probable cause review 21 22

(1) The court must review whether probable cause exists to support a revocation 23 within five court days of the filing of the petition. To conduct the review, the 24 minimum information the court may rely upon is the information contained in 25 the petition and written report of the supervising agency. If the court 26 determines that probable cause exists to support a revocation, the court must 27 indicate the determination on Petition for Revocation of Community 28 Supervision (form CR-300) and preliminarily revoke supervision. 29 30

(2) If the court determines that no probable cause exists to support the 31 revocation, the court must dismiss the petition, vacate any scheduled 32 hearings, and return the person to community supervision on the same terms 33 and conditions. If the court dismisses the petition, the supervising agency 34 must notify the prosecutor, supervised person, and supervised person’s 35 counsel, if any, of the dismissal. 36 37 (

e) Notice of hearing 38 39 The supervising agency must provide notice of the date, time, and place of any 40 hearing related to the petition to revoke to the supervised person, the supervised 41 person’s counsel, if any, the prosecutor, and any victims. 42 43

4 (

f) Waiver 1 2 At any time before a formal hearing on the petition, the supervised person may 3 waive, in writing, his or her right to counsel, admit a violation, waive a hearing, 4 and accept a proposed modification of supervision. 5 6 (

g) Formal hearing 7 8

(1) The hearing on the petition for revocation must occur within a reasonable 9 time after the filing of the petition. 10 11

(2) Revocation determinations must be based on a preponderance of the evidence 12 admitted at the hearing. The statutory and decisional law that governs the 13 admissibility of evidence at probation violation proceedings applies. 14 15 (

h) Orders After Hearing 16 17

(1) If the court finds that the supervised person has not violated a term or 18 condition of supervision, the court must dismiss the petition and return the 19 supervised person to community supervision on the same terms and 20 conditions. 21 22

(2) If the court finds that the supervised person has violated a term or condition 23 of supervision, the court may: 24 25 (

A) Return the supervised person to supervision with modifications of 26 conditions, if appropriate, including a period of incarceration in county 27 jail; 28 29 (

B) Revoke supervision and order the supervised person to confinement in 30 county jail; or 31 32 (

C) Refer the supervised person to a reentry court under Penal Code

section 33 3015 or any other evidence-based program in the court’s discretion. 34 35

(3) Any confinement ordered by the court under (h)(2)(

A) or (

B) must not 36 exceed a period of 180 days in county jail. 37 38 (

i) Findings 39 40 If the court revokes community supervision, the court must summarize in writing 41 the evidence relied on and the reasons for the revocation. A transcript of the 42

5 hearing that contains the court’s oral statement of the reasons and evidence relied 1 on may serve as a substitute for written findings. 2 3 Rule 4.540 adopted effective October 28, 2011. 4 5 Advisory Committee Comment 6 7 Before the enactment of criminal justice realignment legislation (Assem. Bill 109 (Committee on 8 Budget), Stats. 2011, ch. 15; AB 117 (Committee on Budget), Stats. 2011, ch. 39; ABX1 17 9 (Blumenfield), Stats. 2011, ch. 12), parole revocation procedures conducted by the California 10 Department of Corrections and Rehabilitation were subject to federal court injunction. (See 11 Valdivia v.

Schwarzenegger (E.D.Cal., Dec. 2, 2010, Civ. No. S-94-0671 LLK/GGH).) The terms 12 and procedures required by the injunction represent a negotiated settlement between the parties 13 and are not “necessary or required by the constitution.” (Valdivia v. Schwarzenegger (9th Cir. 14 2010) 599 F.3d 984, 995, cert. denied sub nom. Brown v. Valdivia (2011) 131 S.Ct. 1626 15 [vacating a district court order denying the state’s motion to modify the injunction to conform to 16 recently enacted Penal Code

section 3044 because “[t]here is no indication anywhere in the 17 record that these particular procedures are necessary for the assurance of the due process rights of 18 parolees”].) The due process standards applicable to postrelease community supervision 19 revocation proceedings have been established by constitutional case law (see, e.g., Morrissey v. 20 Brewer (1972) 408 U.S. 471, 489; People v.

Vickers (1972) 8 Cal.3d 451, 457–458), not the terms 21 and procedures negotiated by the parties to the federal injunction and related orders. 22 23 The Criminal Law Advisory Committee acknowledges that the practices related to the scheduling 24 of court appearances vary from county to county. Nothing in this rule is intended to prohibit 25 courts from scheduling court appearances according to local needs and customs, including 26 requiring court appearances before formal evidentiary hearings on the petition to revoke.

When 27 filing a petition, petitioners should consult local rules and court staff regarding specific 28 requirements for scheduling court appearances related to revocation petitions. 29 30 Subdivision (c). Penal Code

section 3455 does not prescribe a deadline for filing the petition. It is 31 incumbent on courts and supervising agencies to ensure timely filing of petitions, particularly 32 when the supervised person is detained solely for a violation. 33 34 Subdivision (c)(2)(A).

Detained supervised persons are generally entitled to certain due process 35 rights during revocation proceedings, including a preliminary probable cause determination. (See, 36 e.g., Morrissey, supra, 408 U.S. at 489; Vickers, supra, 8 Cal.3d at 457–458.) Under the criminal 37 justice realignment legislation, supervising agencies are authorized to conduct certain violation 38 proceedings without court involvement. (Pen.

Code, § 3454(b) [authorizing supervising agencies 39 “to determine and order appropriate responses to alleged violations,” including flash 40 incarceration].) A supervising agency may only file a petition to revoke supervision with the 41 court after it has determined, following application of its “assessment processes,” that 42 intermediate sanctions are not appropriate responses to a violation. (Pen. Code, § 3455(a).) 43

6 Supervising agencies are also authorized to determine whether the supervised person should 1 remain in custody pending a revocation hearing and may order the person confined pending a 2 hearing. (Pen. Code, § 3455(b).) To promote supervising agency compliance with the due process 3 rights of supervised persons during any proceedings conducted before the filing of the petition, 4 this subdivision requires the supervising agency to conduct a preliminary probable cause 5 determination before the petition is filed with the court.

Courts must independently review the 6 supervising agency’s probable cause determination under subdivision (d). 7 8 Subdivision (c)(2)(C). This subdivision is designed to ensure that indigent supervised persons 9 who desire counsel are represented as early in the revocation proceedings as possible. Nothing in 10 this subdivision is intended to infringe on court authority to appoint counsel or allow a supervised 11 person to waive the right to counsel. 12 13 Subdivision (d). This subdivision requires courts to review the supervising agency’s probable 14 cause determination required under subdivision (c)(2)(A).

Courts may determine the most 15 appropriate manner to review the supervising agency’s probable cause determination. Nothing in 16 this subdivision is intended to prevent courts from conducting formal hearings to review probable 17 cause. 18 19 Subdivision (e). Victims are separately entitled to notice as required under

article I,

section 28 of 20 the California Constitution. 21 22 Subdivision (f). This subdivision is based on Penal Code

section 3455(a): “At any point during 23 the process initiated pursuant to this section, a person may waive, in writing, his or her right to 24 counsel, admit the violation of his or her postrelease supervision, waive a court hearing, and 25 accept the proposed modification of his or her postrelease supervision.” 26 27 Subdivision (g). This subdivision is based on Penal Code

section 3455(b): “The revocation 28 hearing shall be held within a reasonable time after the filing of the revocation petition.” When 29 deciding a reasonable time for hearing, courts should consider whether the supervised person is 30 detained. (See, e.g., Morrissey, supra, 408 U.S. at 488 [a hearing within two months of arrest may 31 be appropriate under certain circumstances].) 32 33 34 Rule 4.541. Supervising agency reports 35 36 (

a) Declaration 37 38 A petition for revocation of community supervision under Penal Code

section 3455 39 must include a declaration signed under penalty of perjury that confirms that the 40 requirements prescribed by rule 4.540(c)(2) have been satisfied. 41 42

7 (

b) Minimum contents 1 2 Except as provided in (c), a petition for revocation of community supervision under 3 Penal Code

section 3455 must include a written report that contains at least the 4 following information: 5 6

(1) Information about the supervised person, including: 7 8 (

A) Personal identifying information, including name and date of birth; 9 10 (

B) Custody status and the date and circumstances of arrest; 11 12 (

C) Any pending cases and case numbers; 13 14 (

D) The history and background of the supervised person, including a 15

summary of the supervised person’s record of prior criminal conduct; 16 and 17 18 (

E) Any available information requested by the court regarding the 19 supervised person’s risk of recidivism, including any validated risk- 20 needs assessments; 21 22

(2) All relevant terms and conditions of supervision and the circumstances of the 23 alleged violations, including a

summary of any statement made by the 24 supervised person, and any victim information, including statements and type 25 and amount of loss; 26 27

(3) A

summary of all previous violations and sanctions, including flash 28 incarceration, and the reasons that the supervising agency has determined that 29 intermediate sanctions without court intervention as authorized by Penal 30 Code

section 3454(

b) are not appropriate responses to the alleged violations; 31 and 32 33

(4) Any recommendations. 34 35 (

c) Subsequent reports 36 37 If the supervising agency submitted a written report with an earlier revocation 38 petition, a written report attached to a subsequent petition need only update the 39 information required by (b). A subsequent report must include a copy of the 40 original written report if the original report is not contained in the court file. 41 42 Rule 4.541 adopted effective October 28, 2011. 43

8 1 Advisory Committee Comment 2 3 Subdivision (b). This subdivision prescribes minimum contents for supervising agency reports 4 required under Penal Code

section 3455 and rule 4.540(c)(3). Courts may require additional 5 contents in light of local customs and needs. 6 7 Subdivision (b)(1)(D). The history and background of the supervised person may include the 8 supervised person’s social history, including family, education, employment, income, military, 9 medical, psychological, and substance abuse information. 10 11 Subdivision (b)(1)(E). Penal Code

section 3451(

a) requires community supervision to be 12 consistent with evidence-based practices, including supervision policies, procedures, programs, 13 and practices demonstrated by scientific research to reduce recidivism among supervised persons. 14 “Evidence-based practices” refers to “supervision policies, procedures, programs, and practices 15 demonstrated by scientific research to reduce recidivism among individuals under probation, 16 parole, or postrelease supervision.” (Pen. Code, § 3450(b)(9).) 17 18 19

Chapter 3. Habeas Corpus 20 Title 4, Criminal Rules— Division 6, Postconviction, Postrelease, and Writs—

Chapter 3, Habeas 21 Corpus; renumbered effective October 28, 2011; adopted as

Chapter 2. 22 23 24 Title 8. Appellate Rules 25 26 Division 1. Rules Relating to the Supreme Court and Courts of Appeal 27 28

Chapter 1. General Provisions 29 30

Article 2. Service, Filing, Filing Fees, Form, and Number of Documents 31 32 Title 8, Appellate Rules— Division 1, Rules Relating to the Supreme Court and Courts of Appeal— 33

Chapter 1, General Provisions—

Article 2, Service, Filing Fees, Form, and Number of Documents; 34 amended effective October 28, 2011. 35 36 37 Rule 8.25. Service, and filing, and filing fees 38 39 (a)–(b) *** 40 41 (

c) Filing fees 42 43

(1) Unless otherwise provided by law, any document for which a filing fee is 1 required under Government Code sections 68926 or 68927 must be 2 accompanied at the time of filing by the required fee or an application for a 3 waiver of court fees under rule 8.26. 4 5

(2) Documents for which a filing fee may be required under Government Code 6 sections 68926 or 68927 include: 7 8 (

A) A notice of appeal in a civil case. For purposes of this rule, “notice of 9 appeal” includes a notice of cross-appeal; 10 11 (

B) A petition for a writ within the original civil jurisdiction of the 12 Supreme Court or Court of Appeal; 13 14 (

C) A petition for review in a civil case in the Supreme Court; 15 16 (

D) The following where the document is the first document filed in the 17 Court of Appeal or Supreme Court by a party other than the appellant 18 or petitioner in a civil case. For purposes of this rule, a “party other 19 than the appellant” does not include a respondent who files a notice of 20 cross-appeal. 21 22 (

i) An application or an opposition or other response to an 23 application; 24 25 (ii) A motion or an opposition or other response to a motion; 26 27 (iii) A respondent’s brief; 28 29 (iv) A preliminary opposition to a petition for a writ, excluding a 30 preliminary opposition requested by the court unless the court has 31 notified the parties that it is considering issuing a peremptory writ 32 in the first instance; 33 34 (

v) A return (by demurrer, verified answer, or both) after the court 35 issues an alternative writ or order to show cause; 36 37 (vi) Any answer to a petition for review in the Supreme Court; and 38 39 (vii) Any brief filed in the Supreme Court after the court grants 40 review. 41 42

(3) If a document other than the notice of appeal or a petition for a writ is not 1 accompanied by the filing fee or an application for a waiver of court fees 2 under rule 8.26, the clerk must file the document and must promptly notify 3 the filing party in writing that the court may strike the document unless, 4 within the stated time of not less than 5 court days after the notice is sent, the 5 filing party either: 6 7 (

A) Pays the filing fee; or 8 9 (

B) Files an application for a waiver under rule 8.26 if the party has not 10 previously filed such an application. 11 12

(4) If the party fails to take the action specified in a notice given under (2), the 13 reviewing court may strike the document, but may vacate the striking of the 14 document for good cause. 15 16 (Subd (

c) adopted effective October 28, 2011.) 17 18 Rule 8.25 amended effective October 28, 2011; adopted as rule 40.1 effective January 1, 2005; 19 previously amended and renumbered effective January 1, 2007; previously amended effective 20 January 1, 2009, July 1, 2010, and January 1, 2011. 21 22 Advisory Committee Comment 23 24 Subdivision (a). * * * 25 26 Subdivision (b). * * * 27 28 Subdivision (c). Government Code

section 68926 establishes fees in civil cases for filing a notice 29 of appeal, filing a petition for a writ within the original civil jurisdiction of the Supreme Court or 30 a Court of Appeal, and for a party other than appellant or petitioner filing its first document in 31 such an appeal or writ proceeding in the Supreme Court or a Court of Appeal. Government Code 32

section 68927 establishes fees for filing a petition for review in a civil case in the Supreme Court 33 and for a party other than the petitioner filing its first document in a civil case in the Supreme 34 Court. These statutes provide that fees may not be charged in appeals from, petitions for writs 35 involving, or petitions for review from decisions in juvenile cases or proceedings to declare a 36 minor free from parental custody or control, or proceedings under the Lanterman-Petris-Short Act 37 (Part 1 (commencing with

Section 5000) of Division 5 of the Welfare and Institutions Code). 38 39 Subdivision (c)(2)(

A) and (D). Under rule 8.100(f), “notice of appeal” includes a notice of a 40 cross-appeal and a respondent who files a notice of cross-appeal in a civil appeal is considered an 41 appellant and is required to pay the fee for filing a notice of appeal under Government Code 42

section 68926. 43

11 1 A person who files an application to file an amicus brief is not a “party” and therefore is not 2 subject to the fees applicable to a party other than the appellant or petitioner. 3 4 Subdivision (c)(3). Rule 8.100 establishes the procedures applicable when an appellant in a civil 5 appeal fails to pay the fee for filing a notice of appeal or the deposit for the clerk’s transcript that 6 must also be paid at that time. 7 8 9 Rule 8.26. Waiver of fees and costs 10 11 (a) *** 12 13 (

b) Filing the application 14 15

(1) Appeals 16 17 (

A) The appellant should submit any application for initial waiver of court 18 fees and costs for an appeal with the notice of appeal in the superior 19 court that issued the judgment or order being appealed. For purposes of 20 this rule, a respondent who files a notice of cross-appeal is an 21 “appellant.” 22 23 (

B) The respondent A party other than the appellant should submit any 24 application for initial waiver of the court fees and costs for an appeal at 25 the time the fees are to be paid to the court. 26 27

(2) Writ proceedings 28 29 (

A) The petitioner should submit the application for waiver of the court fees 30 and costs for a writ proceeding with the writ petition. 31 32 (

B) A party other than the petitioner should submit any application for 33 initial waiver of the court fees and costs at the time the fees for filing its 34 first document in the writ proceeding are to be paid to the reviewing 35 court. 36 37

(3) Petitions for review 38 39 (

A) The petitioner should submit the application for waiver of the court fees 40 and costs for a petition for review in the Supreme Court with the 41 petition. 42 43

12 (

B) A party other than the petitioner should submit any application for 1 initial waiver of the court fees and costs at the time the fees for filing its 2 first document in the proceeding are to be paid to the Supreme Court. 3 4 (Subd (

b) amended effective October 28, 2011.) 5 6 (c)–(d) *** 7 8 (

e) Court fees and costs waived 9 10 Court fees and costs that must be waived on granting an application for initial 11 waiver of court fees and costs in the Supreme Court or Court of Appeal include: 12 13

(1) The fee for filing the notice of appeal and the fee required for a party other 14 than the appellant filing its first document under Government Code

section 15 68926; 16 17

(2) The fee for filing an original proceeding and the fee required for a party other 18 than the petitioner filing its first document required under Government Code 19

section 68926; 20 21

(3) The fee for filing a petition for review and the fee required for a party other 22 than the petitioner filing its first document under required by Government 23 Code

section 68927; and 24 25 (4) *** 26 27 (Subd (

e) amended effective October 28, 2011.) 28 29 (f)–(g) *** 30 31 Rule 8.26 amended effective October 28, 2011; adopted effective July 1, 2009. 32 33 34 Rule 8.50. Applications 35 36 (a)–(d) *** 37 38 Advisory Committee Comment 39 40 Rule 8.50 addresses applications generally. Rules 8.60, 8.63, and 8.68 address applications to 41 extend or shorten time. 42 43

13 Subdivision (a). A party other than the appellant or petitioner who files an application or 1 opposition to an application may be required to pay a filing fee under Government Code sections 2 68926 or 68927 if the application or opposition is the first document filed in the appeal or writ 3 proceeding in the reviewing court by that party. See rule 8.25(c). 4 5 Subdivision (b): . An exceptional showing of good cause is required in applications in certain 6 juvenile proceedings under rules 8.416, 8.450, 8.452, and 8.454. 7 8 9 Rule 8.54.

Motions 10 11 (a)–(c) *** 12 13 Advisory Committee Comment 14 15 Subdivision (a). A party other than the appellant or petitioner who files a motion or opposition to 16 a motion may be required to pay a filing fee under Government Code sections 68926 or 68927 if 17 the motion or opposition is the first document filed in the appeal or writ proceeding in the 18 reviewing court by that party. See rule 8.25(c). 19 20 Subdivision (c). * * * 21 22 23 Rule 8.200. Briefs by parties and amici curiae 24 25 (a)–(c) *** 26 27 Advisory Committee Comment 28 29 30 Subdivision (a)(2).

A respondent, other than a respondent who has filed a notice of cross-appeal, 31 who files a respondent’s brief may be required to pay a filing fee under Government Code 32 sections 68926 if the respondent’s brief is the first document filed in the appellate proceeding in 33 the Court of Appeal by that party. See rule 8.25(c). 34 35 Subdivision (b). * * * 36 37 Subdivision (c)(1). * * * 38 39 40 Rule 8.487. Opposition and Attorney General amicus briefs 41 42

14 (a)–(c) *** 1 2 Advisory Committee Comment 3 4 A party other than the petitioner who files a preliminary opposition under (

a) or a return or 5 opposition under (

b) may be required to pay a filing fee under Government Code

section 68926 if 6 the preliminary opposition, return, or opposition is the first document filed in the writ proceeding 7 in the reviewing court by that party. See rule 8.25(c). 8 9 Subdivision (a). * * * 10 11 Subdivision (b). * * * 12 13 14 Rule 8.496. Review of Public Utilities Commission cases 15 16 (a)–(c) *** 17 18 Advisory Committee Comment 19 20 Subdivision (b). A party other than the petitioner who files an answer may be required to pay a 21 filing fee under Government Code

section 68926 if the answer is the first document filed in the 22 writ proceeding in the reviewing court by that party. See rule 8.25(c). 23 24 25 Rule 8.498. Review of Agricultural Labor Relations Board and Public Employment 26 Relations Board cases 27 28 (a)–(d) *** 29 30 Advisory Committee Comment 31 32 A party other than the petitioner who files an answer or brief may be required to pay a filing fee 33 under Government Code

section 68926 if the answer or brief is the first document filed in the writ 34 proceeding in the reviewing court by that party. See rule 8.25(c). 35 36 37 Rule 8.500. Petition for review 38 39 (a)–(g) *** 40 41 Advisory Committee Comment 42 43

15 Subdivision (a). A party other than the petitioner who files an answer may be required to pay a 1 filing fee under Government Code

section 68927 if the answer is the first document filed in the 2 proceeding in the Supreme Court by that party. See rule 8.25(c). 3 4 Subdivision (a)(1) makes it clear that any interlocutory order of the Court of Appeal— such as an 5 order denying an application to appoint counsel, to augment the record, or to allow oral 6 argument— is a “decision” that may be challenged by petition for review. 7 8 Subdivision (e). * * * 9 10 Subdivision (f). * * * 11 12 13 Rule 8.520. Briefs by parties and amici curiae; judicial notice 14 15 (a)–(h) *** 16 17 Advisory Committee Comment 18 19 Subdivision (a).

A party other than the petitioner who files a brief may be required to pay a filing 20 fee under Government Code

section 68927 if the brief is the first document filed in the 21 proceeding in the Supreme Court by that party. See rule 8.25(c). 22 23 Subdivisions (

c) and (d). * * * 24