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2021 California Rules of Court

Rule 8.392. Filing the appeal; certificate of appealability

(a) Notice of appeal

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

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

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

(1)  The petitioner may appeal the decision of the superior court denying relief on a successive death penalty-related habeas corpus petition only if the superior court or the Court of Appeal grants a certificate of appealability under Penal Code section 1509.1(c).

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

(3)  If the superior court denied a certificate of appealability, the petitioner must attach to the notice of appeal a request to the Court of Appeal for a certificate of appealability. The request must identify the petitioner's claim or claims for relief and explain how the requirements of Penal Code section 1509(d) have been met.

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

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

(6)  The Court of Appeal must grant or deny the request for a certificate of appealability within 10 days of the filing of the request in that court. If the Court of Appeal grants a certificate of appealability, the certificate must identify the substantial claim or claims for relief shown by the petitioner. The clerk must send a copy of the certificate or its order denying the request for a certificate to:

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

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

(C)  The Attorney General;

(D)  The district attorney;

(E)  The superior court clerk; and

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

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

(c) Notification of the appeal

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

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

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

(C)  The Attorney General;

(D)  The district attorney;

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

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

(G)  Each court reporter; and

(H)  Any primary reporter or reporting supervisor.

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

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

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

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

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

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

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

(7)  Failure to comply with any provision of this subdivision does not affect the validity of the notice of appeal.

Rule 8.392 adopted effective April 25, 2019.

Advisory Committee Comment

Subdivision (b). This subdivision addresses issuance of a certificate of appealability by the Court of Appeal. Rule 4.576(b) addresses issuance of a certificate of appealability by the superior court.

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