Rule 8.631. Applications to file overlength briefs in appeals from a judgment of death

(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.