Rule 8.360. Briefs by parties and amici curiae
(a) Contents and form
Except as provided in this rule, briefs in criminal appeals must comply as nearly as possible with rules 8.200 and 8.204.
(Subd (a) amended effective January 1, 2007.)
(1)A brief produced on a computer must not exceed 25,500 words, including footnotes. Such a brief must include a certificate by appellate counsel or an unrepresented defendant stating the number of words in the brief; the person certifying may rely on the word count of the computer program used to prepare the brief.
(2)A typewritten brief must not exceed 75 pages.
(3)The tables required under rule 8.204(a)(1), the cover information required under rule 8.204(b)(10), any Certificate of Interested Entities or Persons required under rule 8.361, a certificate under (1), any signature block, and any attachment permitted under rule 8.204(d) are excluded from the limits stated in (1) or (2).
(4)A combined brief in an appeal governed by (e) must not exceed double the limit stated in (1) or (2).
(5)On application, the presiding justice may permit a longer brief for good cause.
(Subd (b) amended effective January 1, 2011; previously amended effective January 1, 2007.)
(c) Time to file
(1)The appellant's opening brief must be served and filed within 40 days after the record is filed in the reviewing court.
(2)The respondent's brief must be served and filed within 30 days after the appellant's opening brief is filed.
(3)The appellant must serve and file a reply brief, if any, within 20 days after the respondent files its brief.
(4)The time to serve and file a brief may not be extended by stipulation, but only by order of the presiding justice under rule 8.60.
(5)If a party fails to timely file an appellant's opening brief or a respondent's brief, the reviewing court clerk must promptly notify the party in writing that the brief must be filed within 30 days after the notice is sent, and that failure to comply may result in one of the following sanctions:
(A)If the brief is an appellant's opening brief:
(i)If the appellant is the People, the court will dismiss the appeal;
(ii)If the appellant is the defendant and is represented by appointed counsel on appeal, the court will relieve that appointed counsel and appoint new counsel;
(iii)If the appellant is the defendant and is not represented by appointed counsel, the court will dismiss the appeal; or
(B)If the brief is a respondent's brief, the court will decide the appeal on the record, the opening brief, and any oral argument by the appellant.
(6)If a party fails to comply with a notice under (5), the court may impose the sanction specified in the notice.
(Subd (c) amended effective January 1, 2016; previously amended effective January 1, 2007.)
(1)Defendant's appellate counsel must serve each brief for the defendant on the People and the district attorney, and must send a copy of each to the defendant personally unless the defendant requests otherwise.
(2)The proof of service under (1) must state that a copy of the defendant's brief was sent to the defendant, or counsel must file a signed statement that the defendant requested in writing that no copy be sent.
(3)The People must serve two copies of their briefs on the appellate counsel for each defendant who is a party to the appeal and one copy on the district appellate project. If the district attorney is representing the People, one copy of the district attorney's brief must be served on the Attorney General.
(4)A copy of each brief must be served on the superior court clerk for delivery to the trial judge.
(Subd (d) amended effective January 1, 2013.)
(e) When a defendant and the People appeal
When both a defendant and the People appeal, the defendant must file the first opening brief unless the reviewing court orders otherwise, and rule 8.216(b) governs the contents of the briefs.
(Subd (e) amended effective January 1, 2007.)
(f) Amicus curiae briefs
Amicus curiae briefs may be filed as provided in rule 8.200(c).
(Subd (f) amended effective January 1, 2007.)
Rule 8.360 amended effective January 1, 2016; repealed and adopted as rule 33 effective January 1, 2004; previously amended and renumbered as rule 8.360 effective January 1, 2007; previously amended effective January 1, 2011, and January 1, 2013.
Advisory Committee Comment
Subdivision (b). Subdivision (b)(1) states the maximum permissible length of a brief produced on a computer in terms of word count rather than page count. This provision tracks a provision in rule 8.204(c) governing Court of Appeal briefs and is explained in the comment to that provision. The word count assumes a brief using one-and-one-half spaced lines of text, as permitted by rule 8.204(b)(5). Subdivision (b)(3) specifies certain items that are not counted toward the maximum brief length. Signature blocks as referenced in this provision, include not only the signatures, but also the printed names, titles, and affiliations of any attorneys filing or joining in the brief, which may accompany the signature.
The maximum permissible length of briefs in death penalty appeals is prescribed in rule 8.630.