Fourth District Resources
These pages highlight practices, policies, and procedures unique to the Fourth Appellate District and to each of its divisions.
Filing and Division-Specific Practices
- Fourth District Filing & Service
- Division One Practice
(Miscellaneous orders, Benoit filings, correction of the record & extensions in dependency cases, superior court files/exhibits access, oral argument)
- Division Two Practice
(Miscellaneous orders, Benoit filings, extensions in dependency cases, exhibit transmission, superior court files/exhibits access, tentative opinions)
- Division Three Practice
(Miscellaneous orders, default notice before appointment, Benoit filings, extensions in dependency cases, records in PC 1172.6 appeals, superior court files/exhibits access)
Superior courts are moving to electronic transcripts, but as procedures are still in flux for many courts ADI’s information is incomplete.
The JCC will only permit compensation for printing transcripts if the superior court will not provide a paper copy. Unless otherwise indicated, counsel should ask for a paper copy if the client will need one, whether the court gives counsel a choice at the outset or sends electronic transcripts without inquiring. The request should be made as soon as possible. If the superior court will not provide a paper copy after the request, the cost of printing is compensable on Expenses, Line 10. Indicate in the claim comments that the superior court would not provide counsel with a paper copy upon request.
All Fourth District counties (except Imperial) are currently providing paper records for criminal appeals. Imperial County provides records on CD for all cases. Electronic records are provided in delinquency appeals for San Diego (with a paper copy available upon request), Riverside, and San Bernardino (CD only – no paper copy will be provided). Dependency records should be provided on CD (San Bernardino and Imperial) or electronically (all other courts).
Dependency Records in Non-Party Appeals
Records provided for non-party appellants must include only information to which the non-party had access below. If counsel for a non-party appellant receives a record that includes information to which they should not have access, counsel should file a motion to correct the record or strike with the Court of Appeal as soon as possible. The motion should identify what parts of the record were included by error. To gain access to the confidential parts of the record, counsel must follow the procedure set forth in Welfare and Institutions Code section 827.
Augments and Record Correction
Attorneys who find pages missing in their copy of the transcript should call the Court of Appeal before filing a record correction letter. Sometimes the court’s copy will have the missing pages, and the court will provide those pages to counsel without need of a formal letter.
If counsel needs to request both augmentation and correction of the normal record on appeal, counsel should file a combined augmentation request for all the needed records, instead of filing separate augment and correction requests.
The court has requested attorneys conclude augment requests with a checklist of documents requested in addition to specifying the documents in the text of the request.
Fourth District courts do not stay the appeal or automatically issue a time extension upon granting an augment request or when counsel files a record correction letter. If counsel needs an extension of time, counsel must request it with the augment or file a separate extension request where counsel is waiting on a corrected transcript.
No Proposed Orders Needed
Fourth District courts do not require proposed orders for motions.
Dependency Brief Statements
The Statement of the Case and Statement of Facts may be combined.
Criminal appellate counsel filing Wende briefs in Division One are advised to include Anders issues; the other divisions are less rigid about the need for Anders issues. For dependency cases, all divisions require Anders issues in Sade C. letters. The court will not read the record, and with the exception of Division Two the court will not invite a pro per brief or write an opinion.
Ineffective Assistance of Counsel Arguments
Ineffective assistance of counsel is one of the rare situations where we ask appointed counsel to consult with ADI before raising the issue. This issue is unusual for a few reasons. It requires input from trial counsel because the viability of such an issue will hinge on trial counsel’s purpose in acting (or failing to act) and whether it was a reasonable tactical choice. If the issue is viable, it often requires a companion habeas proceeding. In addition, the manner in which we invite trial counsel’s cooperation sets the groundwork for communication with the trial bar in future cases. Finally, ineffective assistance of counsel issues can implicate Business and Professions Code section 6086.7 which requires a court to notify the State Bar whenever a modification or reversal of a judgment in a judicial proceeding is based on “incompetent representation,” and section 6068, subdivision (o)(7) which requires an attorney to self-report when the modification or reversal is based on “grossly incompetent representation.” Because of these many considerations, consultation with ADI is essential. Please contact the assigned staff attorney before raising ineffective assistance of counsel in the brief or companion habeas. In criminal cases, consultation is not necessary when the ineffective assistance counsel issue is argued in the alternative.
Appointed counsel in the Fourth Appellate District does not need to seek expansion of the appointment to file a habeas petition. While court pre-approval is not required, ADI recommends consultation with the assigned staff attorney. The Fourth Appellate District requires a motion to consolidate if counsel wants the habeas petition considered with the direct appeal.
Expert and Translator Fees
ADI can pre-approve up to $900 in expert fees. Counsel must seek court pre-approval for any amount in excess. Moderate translator fees ($200 or less) do not require pre-approval.
If the need for a supplemental brief arises before the respondent’s brief has been filed, counsel should move to strike the AOB and file a new brief with the added issue. If the respondent’s brief has already been filed, counsel should submit a supplemental opening brief and a separate request for permission to file it.
Division 1 has returned to in-person oral argument, though parties may request remote appearance with good cause. Division 2 offers both in-person and remote argument, with some justices still appearing via videoconference. Division 3 is holding oral argument in-person with two exceptions: audio-only appearance for counsel with special needs is available with permission of the court, and cases transferred from the Sixth Appellate District are held via videoconference.
Retained Counsel Substitutions
The court wants ADI to screen substitution requests from retained counsel to ensure they are in order before filing. If an attorney has indicated their desire to substitute in as retained counsel on your appointed case refer them to ADI. Once ADI has verified that counsel is indeed retained by the client, ADI will file a motion for substitution with the Court of Appeal. Appointed counsel does not need to sign the substitution form. Be sure to keep the record until the court has approved the substitution.