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2021 California Rules of Court

Rule 8.396. Briefs by parties and amici curiae

(a) Contents and form

(1)  Except as provided in this rule, briefs in appeals governed by the rules in this article must comply as nearly as possible with rules 8.200 and 8.204.

(2)  If, as permitted by Penal Code section 1509.1(b), the petitioner wishes to raise a claim in the appeal of ineffective assistance of trial counsel that was not raised in the superior court habeas corpus proceedings, that claim must be raised in the first brief filed by the petitioner. A brief containing such a claim must comply with the additional requirements in rule 8.397.

(3)  If the petitioner is appealing from a decision of the superior court denying relief on a successive death penalty-related habeas corpus petition, the petitioner may only raise claims in the briefs that were identified in the certificate of appealability that was issued and any additional claims added by the Court of Appeal as provided in Penal Code section 1509.1(c).

(b) Length

(1)  A brief produced on a computer must not exceed the following limits, including footnotes, except that if the presiding justice permits the appellant to file an opening brief that exceeds the limit set in (1)(A) or (3)(A), the respondent's brief may not exceed the same length:

(A)  Appellant's opening brief: 102,000 words.

(B)  Respondent's brief: 102,000 words.

(C)  Reply brief: 47,600 words.

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

(3)  A typewritten brief must not exceed the following limits, except that if the presiding justice permits the appellant to file an opening brief that exceeds the limit set in (1)(A) or (3)(A), the respondent's brief may not exceed the same length:

(A)  Appellant's opening brief: 300 pages.

(B)  Respondent's brief: 300 pages.

(C)  Reply brief: 140 pages.

(4)  The tables required under rule 8.204(a)(1), the cover information required under rule 8.204(b)(10), a certificate under (2), any signature block, and any attachment permitted under rule 8.204(d) are excluded from the limits stated in (1) and (3).

(5)  A combined brief in an appeal governed by (e) must not exceed double the limit stated in (1) or (3).

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

(c) Time to file

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

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

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

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

(5)  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.

(6)  If a party fails to timely file an appellant's opening brief or a respondent's brief, the clerk/executive officer of the Court of Appeal 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 sanctions specified in the notice.

(d) Service

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

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

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

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

(e) When the petitioner and the People appeal

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

(f) Amicus curiae briefs

Amicus curiae briefs may be filed as provided in rule 8.200(c), except that an application for permission of the presiding justice to file an amicus curiae brief must be filed within 14 days after the last appellant's reply brief is filed or could have been filed under (c), whichever is earlier.

Rule 8.396 adopted effective April 25, 2019.

Advisory Committee Comment

Subdivision (a)(3). This subdivision is intended to implement the sentence in Penal Code section 1509.1(c) providing that "[t]he jurisdiction of the court of appeal is limited to the claims identified in the certificate [of appealability] and any additional claims added by the court of appeal within 60 days of the notice of appeal."

Subdivision (b)(4). This subdivision specifies certain items that are not counted toward the maximum brief length. Signature blocks referred to 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.

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