(a) Cases in which this rule applies
This rule applies in appeals from a judgment of death in which the certified record is filed in the California Supreme Court on or after January 1, 2008.
(b) Policies
(1) The brief limits set by rule 8.630 are substantially higher than for other appellate briefs in recognition of the number, significance, and complexity of the issues generally presented in appeals from judgments of death and are designed to be sufficient to allow counsel to prepare adequate briefs in the majority of such appeals.
(2) In a small proportion of such appeals, counsel may not be able to prepare adequate briefs within the limits set by rule 8.630. In those cases, necessary additional briefing will be permitted.
(3) A party may not file a brief that exceeds the limit set by rule 8.630 unless the court finds that good cause has been shown in an application filed within the time limits set in (d).
(c) Factors considered
The court will consider the following factors in determining whether good cause exists to grant an application to file a brief that exceeds the limit set by rule 8.630:
(1) The unusual length of the record. A party relying on this factor must specify the length of each of the following components of the record:
(A) The reporter's transcript;
(B) The clerk's transcript; and
(C) The portion of the clerk's transcript that is made up of juror questionnaires.
(2) The number of codefendants in the case and whether they were tried separately from the appellant;
(3) The number of homicide victims in the case and whether the homicides occurred in more than one incident;
(4) The number of other crimes in the case and whether they occurred in more than one incident;
(5) The number of rulings by the trial court on unusual, factually intensive, or legally complex motions that the party may assert are erroneous and prejudicial. A party relying on this factor must briefly describe the nature of these motions;
(6) The number of rulings on objections by the trial court that the party may assert are erroneous and prejudicial;
(7) The number and nature of unusual, factually intensive, or legally complex hearings held in the trial court that the party may assert raise issues on appeal; and
(8) Any other factor that is likely to contribute to an unusually high number of issues or unusually complex issues on appeal. A party relying on this factor must briefly specify those issues.
(d) Time to file and contents of application
(1) An application to file a brief that exceeds the limits set by rule 8.630 must be served and filed as follows:
(A) For an appellant's opening brief or respondent's brief:
(i) If counsel has not filed an application requesting an extension of time to file the brief, no later than 45 days before the brief is due.
(ii) If counsel has filed an application requesting an extension of time to file the brief, within the time specified by the court in its order regarding the extension of time.
(B) For an appellant's reply brief:
(i) If counsel has not filed an application requesting an extension of time to file the brief, no later than 30 days before the brief is due.
(ii) If counsel has filed an application requesting an extension of time to file the brief, within the time specified by the court in its order regarding the extension of time.
(2) After the time specified in (1), an application to file a brief that exceeds the applicable limit may be filed only under the following circumstances:
(A) New authority substantially affects the issues presented in the case and cannot be adequately addressed without exceeding the applicable limit. Such an application must be filed within 30 days of finality of the new authority; or
(B) Replacement counsel has been appointed to represent the appellant and has determined that it is necessary to file a brief that exceeds the applicable limit. Such an application must be filed within the time specified by the court in its order setting the deadline for replacement counsel to file the appellant's brief.
(3) The application must:
(A) State the number of additional words or typewritten pages requested.
(B) State good cause for granting the additional words or pages requested, consistent with the factors in (c). The number of additional words or pages requested must be commensurate with the good cause shown. The application must explain why the factors identified demonstrate good cause in the particular case. The application must not state mere conclusions or make legal arguments regarding the merits of the issues on appeal.
(C) Not exceed 5,100 words if produced on a computer or 15 pages if typewritten.
Rule 8.631 adopted effective January 1, 2008.
Advisory Committee Comment
Subdivision (a). In all cases in which a judgment of death was imposed after a trial that began after January 1, 1997, the record filed with the Supreme Court will be the record that has been certified for accuracy under rule 8.622. In cases in which a judgment of death was imposed after a trial that began before January 1, 1997, the record filed with the Supreme Court will be the certified record under rule 8.625.
Subdivision (c)(1). As in guideline 8 of the Supreme Court's Guidelines for Fixed Fee Appointments, juror questionnaires generally will not be taken into account in considering whether the length of the record is unusual unless these questionnaires are relevant to an issue on appeal. A record of 10,000 pages or less, excluding juror questionnaires, is not considered a record of unusual length; 70 percent of the records in capital appeals filed between 2001 and 2004 were 10,000 pages or less, excluding juror questionnaires.
Subdivision (c)(5). Examples of unusual, factually intensive, or legally complex motions include motions to change venue, admit scientific evidence, or determine competency.
Subdivisions (c)(5)-(8). Because an application must be filed before briefing is completed, the issues identified in the application will be those that the party anticipates may be raised on appeal. If the party does not ultimately raise all of these issues on appeal, the party is expected to have reduced the length of the brief accordingly.
Subdivision (c)(7). Examples of unusual, factually intensive, or legally complex hearings include jury composition proceedings and hearings to determine the defendant's competency or sanity, whether the defendant has an intellectual disability, and whether the defendant may be self-represented.
Subdivision (d)(1)(A)(ii). To allow the deadline for an application to file an overlength brief to be appropriately tied to the deadline for filing that brief, if counsel requests an extension of time to file a brief, the court will specify in its order regarding the request to extend the time to file the brief, when any application to file an overlength brief is due. Although the order will specify the deadline by which an application must be filed, counsel are encouraged to file such applications sooner, if possible.
Subdivision (d)(3). These requirements apply to applications filed under either (d)(1) or (d)(2).