California Appeals Lawyers
Sometimes judges and juries get it wrong. But even if you or a loved one suffered a conviction in court, all hope is not lost. Often the conviction can be appealed, and sometimes overturned.
Our California appeals attorneys can help you appeal criminal court decisions and convictions throughout the state, including those from San Francisco, Los Angeles, San Bernardino, San Diego, Riverside and Orange Counties. We invite you to contact us to see what can be done.
The Appeals Process in California
Most importantly, an appeal is NOT a new trial before a higher court. It is instead a review of a conviction by the appeals (or "appellate") court.
This article explains the appeal process in order of the events entailed: (1) notice of appeal; (2) bail while on appeal; (3) preparation of transcripts and record; (4) Appellant’s opening brief; (5) Respondent’s opening brief; (6) Appellant’s reply brief; (7) oral argument; (8) petition for rehearing; and (9) petition for review.
The California appellate system consists of two levels of appellate courts. The California Court of Appeal—"appeal," not "appeals"—has six divisions around the state. The California Supreme Court is the final arbiter of state law matters and sits in San Francisco.
1. Notice of Appeal
Upon receiving a conviction in superior court, the defendant (usually through his California Appeal Lawyer) can file a notice of appeal to have a higher court review the superior court proceedings. A notice of appeal is a relatively simple form that is filed in the Superior Court which informs the Superior Court and the Court of Appeal that you are challenging the trial court’s judgment. Depending upon the type of case you are challenging, the notice of appeal generally must be filed within the first 30-60 days following the Superior Court judgment. Your trial lawyer or your California appellate lawyer can prepare this form.
The right to appeal in a criminal case is governed by statute. (Pen. Code, sec. 1237.) Appeal is initiated by filing a "notice of appeal" with the Clerk of the Superior Court within 60 days from rendition of the judgment or challenged order. (Cal. Rules of Ct., rule 8.308(a).) The appeal must be taken from a final judgment, which may be a final conviction or an order granting probation, insanity commitment, mentally disordered commitment, or an addiction commitment. (Pen. Code, sec. 1237, subd. (a).) The defendant may file a "general notice of appeal," which appeals the judgment following a jury or court trial or a contested probation revocation. (Pen. Code, sec. 1237, subd. (a).) This notice does not require any specification of issues and counsel on appeal is not limited by any designation of issues by trial counsel. There is also a right to appeal orders made after judgment which affect the substantial rights of a defendant and post-judgment orders denying additional presentence credits. (Pen. Code, secs. 1237, subd. (b) and 1237.1.)
Appealing a guilty plea (or an admission of a violation of probation) adds complexity to the notice of appeal law. If sentencing issues alone are raised, the notice of appeal must state that a sentencing appeal is being taken which does not challenge the validity of the plea itself. (Cal. Rules of Ct., rule 8.304(b)(4)(B).) For an appeal of a Fourth Amendment matter—relating to illegally obtained evidence—the notice of appeal must specify that a search and seizure issue is to be raised. (Rule 8.304(b)(4)(A).) Non-compliance with these rules will yield the appeal inoperative and subject to dismissal. (Rule 8.304(b)(3).) However, the specification of only a single proper ground for appeal allows any and all cognizable issues to be raised. (People v. Jones (1995) 10 Cal.4th 1102, 1105.) Because the clerk of the trial court may not notice a defect in the notice of appeal, it is important for counsel in guilty plea cases to review the notice and take steps to amend the notice or seek relief in order to cure any defect before the Court of Appeal rejects the notice.
Other than sentencing and Fourth Amendment issues, a guilty plea waives appellate review of issues except those affecting the legality of the plea or the trial court’s jurisdiction. (See People v. Turner (1985) 171 Cal.App.3d 116, 123-129; listing issues which survive a guilty plea; see also In re Chavez (2003) 30 Cal.4th 643, 649, fn. 2.) One example of such an issue is the denial of a motion to withdraw a guilty plea. In order to raise an otherwise cognizable issue on appeal, the defendant must first obtain a certificate of probable cause from the trial judge. If a certificate is obtained on one issue, all otherwise cognizable claims may be raised on appeal. (People v. Hoffard (1995) 10 Cal.4th 1170, 1173-1174.) The steps for obtaining a certificate of probable cause are discussed below.
If appellate counsel discerns a defect in the notice of appeal or the absence of a certificate of probable cause, the problem must be addressed immediately. If it is less than 60 days since the imposition of judgment, counsel can file an amended notice of appeal or an application for a certificate of probable cause. If it is too late to proceed in the trial court, relief from default must be sought in the Court of Appeal.
The requirement of a certificate of probable cause is codified in Penal Code section 1237.5. Section 1237.5 prohibits a defendant from prosecuting an appeal following a guilty plea, no contest plea or admission of a probation violation unless he or she has filed in the Superior Court "a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." (Sec. 1237.5, subd. (a).) As with all appeals from Superior Court, the required statement must be filed within 60 days of the entry of judgment. (See Cal. Rules of Ct., rules 8.304(b)(1), 8.308(a).) Counsel may execute the statement on the client’s behalf. A certificate of probable cause is not required to prosecute every appeal following a guilty plea. Rather, issues "occurring after entry of the plea" (usually sentencing issues) and search and seizure issues which were litigated in Superior Court may be raised by filing a notice of appeal which simply specifies the issue to be raised. (Rule 8.304(b)(4).) If counsel intends to raise a sentencing or Fourth Amendment issue and an issue which requires a certificate of probable cause, a single notice of appeal and application for certificate of probable cause should be filed. (People v. Mendez (1999) 19 Cal.4th 1084, 1102, fn. 11.)
Most issues in a criminal case are waived—given up—by a plea of guilty. Thus, if an issue is waived by a plea, the issuance of a certificate of probable cause does not serve to bring it back to life. (People v. Turner, supra, 171 Cal.App.3d 116, 125.) Therefore, defense lawyers must be conversant on those issues which are waived by a guilty plea. (Id., at pp. 123-129.)
Once the defendant has filed his request for a certificate of probable cause, the trial court may either grant or deny the request. (Pen. Code, sec. 1237.5, subd. (b).) Pursuant to California Rules of Court, rule 8.304(b)(2), the court must rule on the matter "[w]ithin 20 days after the defendant" filed his statement. The court’s ruling must be served on all the parties. (Cal. Rules of Ct., rule 8.304(c).)
Trial courts must employ a very generous standard in ruling on requests for a certificate of probable cause. In this regard, "[i]t is not the trial court's responsibility to determine if there was an error in the proceedings . . . Thus, if the statement submitted by the defendant in accordance with section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious, the trial court abuses its discretion if it fails to issue a certificate of probable cause." (People v. Holland (1978) 23 Cal.3d 77, 84; accord, People v. Hoffard, supra, 10 Cal.4th 1170, 1178-1179.)
When a trial court refuses to issue a certificate of probable cause, the defendant may appeal that matter by way of a petition for a writ of mandate. (Holland, supra, 23 Cal.3d at p. 84, fn. 6.)
Where trial counsel has failed to timely request a certificate of probable cause, but has filed a timely notice of appeal, it is presently unclear in the law whether a motion for relief from default may be ruled on by Court of Appeal. (See In re Chavez, supra, 30 Cal.4th 643, 652-657; holding that a motion for relief from default does not lie when neither a timely notice of appeal nor a request for certificate of probable cause is filed.) Since the filing of a timely notice of appeal confers jurisdiction on the Court of Appeal, it may be that the court also has jurisdiction to allow an untimely certificate request to be considered. (See People v. Jones, supra, 10 Cal.4th 1102, 1108, fn. 4; reviewing court has the authority to grant relief from default to allow the filing of an amended notice of appeal.)
Where the defendant fails to file a notice of appeal, he or she must seek relief from default. Under California Rules of Court, rule 8.308(a), a notice of appeal from a felony conviction must be filed no later than 60 days after entry of judgment (i.e. the date of sentencing). Upon occasion, the defendant will fail to meet the 60 day deadline. While the law treats the 60 day rule as a firm jurisdictional limit on the right of appeal (In re Benoit (1973) 10 Cal.3d 72, 81), the reality remains that the tardy filing of a notice of appeal can be excused under a number of theories.
While California Rules of Court, rule 8.60(d) purports to preclude a motion for relief from default, the fact remains that motions for relief from default are routinely entertained as a matter of custom in several appellate courts.
Alternately, a defendant may file a petition for writ of habeas corpus in the Court of Appeal. (In re Hernandez (1974) 40 Cal.App.3d 893, 894.) However, since the government has only 15 days in which to respond to a motion (Cal. Rules of Ct., rule 8.54(a)), the use of a habeas petition will generally not be the most expeditious remedy for the defendant.
The primary theory which will allow relief from default is some form of claim that trial counsel failed to perform his or her duties. In this regard, one of two claims may be available: (1) trial counsel failed to fulfill his promise to file a notice of appeal; or (2) trial counsel failed to advise the defendant of his right to appeal.
Where counsel failed to advise defendant of his right to appeal, the law provides relief. If a trial lawyer fails to file a timely notice of appeal upon the client’s request, relief from default must be granted and an appeal would be permitted. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 477; accord, In re Benoit, supra, 10 Cal.3d 72, 87-88.)
A trial attorney has the duty to provide the client with "advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal." (Pen. Code, sec. 1240.1, subd. (a).) Thus, if trial counsel fails to advise the defendant of his right of appeal, relief from default should be granted if the defendant promptly moves to institute an appeal once he learns of his appellate rights. (In re Arthur N. (1974) 36 Cal.App.3d 935, 940-941; accord, Castro v. Superior Court (1974) 40 Cal.App.3d 614, 619-621.)
Aside from default occasioned by the ineffective assistance of trial counsel, a defendant may also rely on the trial court judge’s failure to fulfill its duty. California Rules of Court, rule 4.470 requires the trial judge to advise a defendant of his right of appeal if the defendant has either stood trial or had a contested probation revocation hearing. If the court fails to provide the information required by rule 4.470, a defendant may obtain relief from default on the grounds that he was ignorant of his right to appeal. (In re Arthur N., supra, 36 Cal.App.3d 935, 939-941; see also People v. Acosta (1969) 71 Cal.2d 683, 688-690.) Because relief from default is discretionary (rather than mandatory), it is essential that such relief be sought with all due diligence once the defendant becomes aware of his right of appeal. (See Castro v. Superior Court, supra, 40 Cal.App.3d 614, 621-622; relief denied where defendant submitted a "vague" declaration which failed to adequately explain his two year delay in filing a notice of appeal.)
Next, a defendant is oftentimes entitled to relief under the doctrine of constructive filing. Typically, this theory will come into play when an incarcerated prisoner asks the prison or jail to mail his notice of appeal to the Superior Court. If the notice of appeal is given to the custodian within the 60 day period prescribed by rule 8.308, relief will be granted if the notice of appeal arrives at the Superior Court too late. (In re Jordan, supra, 4 Cal.4th 116, 118-119; Cal. Rules of Ct., rule 8.308(d).) Similarly, a notice of appeal by an unrepresented defendant sent to the wrong court will be deemed timely filed. (People v. Griggs (1967) 67 Cal.2d 314, 317-318.)
This doctrine of constructive filing is not limited solely to the situation where a piece of mail is unduly delayed. Rather, if a prison official or other government officer misleads a defendant concerning his right of appeal, grounds for relief from default may well exist. (Benoit, supra, 10 Cal.3d 72, 83; relief will be granted when a defendant relies "upon representations or conduct of prison officials which lulled him into a false sense of security.") The same rule applies to court officers. (People v. Martin (1963) 60 Cal.2d 615, 619; relief granted where trial judge misled the defendant.)
The failure to file a timely notice of appeal is very serious, but not necessarily the end of a defendant's opportunity to pursue an appellate remedy. Rather, if a defendant quickly seeks relief once he learns of his right of appeal, there is a good chance that he will receive his entitlement to appellate review.
2. Bail While on Appeal in California
Following conviction of a misdemeanor, a defendant has a right to bail pending appeal. (Pen. Code, sec. 1272, subd. 2.) For felonies, bail pending appeal is decided by the trial court. (Pen. Code, sec. 1272.1.)
Of course, a client must qualify for release pending appeal. One limitation is the availability of property or funds to post as surety should an amount of bail be set.
The motion must be made in the trial court. Any application to the Court of Appeal must show that an application was made in the trial court and was unjustifiably refused. (Cal. Rules of Ct., rule 8.312(a)(2).)
To qualify for bail release, a defendant convicted of a felony must demonstrate by clear and convincing evidence that he or she is not likely to flee and that he or she does not pose a danger to any other person or to the community. (Pen. Code, sec. 1272.1, subds. (a) and (b).) There is the further requirement that the appeal not be taken for the purpose of delay and that it raises a substantial legal question, which if decided in the defendant's favor, is likely to result in reversal. (Sec. 1272.1, subd. (c).) The question must be of "more substance than would be necessary to a finding that it was not frivolous." (Sec. 1272.1, subd. (c).)
Release after a felony conviction is within the trial court's discretion. However, the exercise of discretion is not unbridled and reasoned determination requires a brief statement of reasons in support of an order denying a motion for bail on appeal. (Pen. Code, sec. 1272.1, subd. (c).) The statement must be of sufficient specificity to permit meaningful review. (In re Podesto (1976) 15 Cal.3d 921, 937-939.) If the trial court fails to specify reasons, the Court of Appeal will order it to reconsider the motion. (Ibid.)
If a probationer is granted bail on appeal, the trial court retains jurisdiction to later delete a condition of probation imposing a jail term. (In re Stallings (1970) 5 Cal.App.3d 322, 329-330, overruled on other grounds in People v. Cookson (1991) 54 Cal.3d 1091, 1100.) Thus, a client who is released on bail must behave well during the appeal. (See also People v. Tanner (1979) 24 Cal.3d 514, 521-522; defendant was not required to serve prison sentence required by law since he complied with conditions of probation while the People’s appeal was pending.)
3. Preparation of Court Transcripts in California Appeals Cases
After a notice of appeal is filed, the Superior Court is ordered to prepare two "transcripts": the court reporter who sat in on the trial will prepare the transcript of what was said in court hearings (the "Reporter’s Transcript"); the court clerk prepares all the other material—the documents filed in the court’s file (the "Clerk’s Transcript"). If there was no court reporter present in court, it is likely that the court where the case was tried instead made an audio recording that can also be turned into a Reporter’s Transcript.
Some appellate attorneys draft a statement of the case and a statement of facts immediately after reading the record, while the facts are fresh in their minds. Others will take notes while reading the record and draft these portions of the brief after determining which arguments should be raised.
The appellate attorney must also work to complete the record. Under rule 8.340(c) (criminal) and 8.408(e)(1) (incorporating 8.155(a)) (juvenile), the Court of Appeal may grant an augmentation of the record "[a]t any time." However, it is far better practice to adhere to the former deadlines as much as possible, i.e. 30 days after record filing.
If some other document or transcript is missing from the record, it may be added if it is an item that should normally be in the record on appeal. (For a list of "normal" items in appellate records, see rules 8.320 and 8.404(a).) If it is a "normal" record item which has been omitted from the record, the appellate attorney will write to the superior court clerk and request that the missing document or transcript be sent to all counsel and to the Court of Appeal pursuant to rule 8.340(b)). If the missing document or transcript is not a "normal" appellate record item, an appellate attorney will file an "augment motion" with the Court of Appeal seeking permission to add more material to the transcript.
A unique situation arises occasionally concerning augment requests. The Superior Court will send probation reports or various medical or psychological reports to the Court of Appeal outside of the Clerk’s Transcript as these items are not to become public record. Similarly, oftentimes the record is missing a sealed transcript involving the identity of an informant or some other such proceeding from which the defense was excluded at trial. This will frequently arise with a sealed affidavit in support of a search warrant, but it could also arise any time there were motions litigated in the trial court concerning the identity of a confidential informant ("CI") or other situation from which the defense was excluded and the records sealed. In these situations, an appellate lawyer should make a rule 8.340(b) request for the item and specify in your request that the superior court clerk should send the item, under seal, directly to the Court of Appeal. Then Appellant counsel can file a motion in the Court of Appeal to unseal the items. If the Court of Appeal denies the motion, Appellant can then ask the court to review the materials in camera (without letting the Appellant see the material) to determine if there was error under the appropriate legal standards. In short, the Appellant cannot simply make a rule 8.340(b) request for the item as Superior Court clerk might mistakenly send the transcript directly to the Appellant.
Even where the defendant selects a new attorney for his or her appeal, the appellate lawyer should contact the trial counsel to get trial counsel’s full impressions of the case. This can be awkward in cases where the appellate counsel is raising an issue of ineffective assistance of counsel at trial.
Appellate counsel may need to personally view the Superior Court file. This is a chance to examine the record in full detail and possibly find motions or points of evidence which were not included in the appellate record. The case file is located in the county Superior Court clerk’s office where the case was tried. This may be particularly worthwhile in cases where there were many pretrial motions.
Exhibits themselves may be sent to the Court of Appeal in some circumstances. If appellate counsel or client wants to have the superior court transmit an exhibit to the Court of Appeal, the lawyer must designate in the superior court the exhibit to be transmitted within ten days after the filing of the respondent's brief—that is, the Attorney General’s brief. This permits the Court of Appeal to have the exhibit already available for review once the briefing is completed and the court is reviewing the briefing in the case, rather than having to wait until the court has set the case for argument. The rules of court specifies states that the designation must be made within ten days of the respondent's brief, i.e., before the reply brief is actually due.
If it makes sense to ask the appellate court to take judicial notice of a document, such a request must be made in writing.
If the case requires an extension of time, written request must be made of the Court of Appeal in the form of a motion. Counsel should not file a request for an extension of time if the brief will be filed within the time allotted by the California Rules of Court, which provides an additional 30 days after the official due date in criminal cases (rule 8.360(c)(5)) and most juvenile cases (rule 8.412(b)(5)) and an additional 15 days in dependency appeals from the termination of parental rights (rule 8.416(g)). If additional time is required past that 30- or 15-day period, a wise appellate lawyer should leave himself or herself one or two weeks, so that if the extension is denied, the brief may still be completed prior to the expiration of the period. Good cause must be shown in the application for additional time. When the court grants an EOT and states "no further extensions will be granted," the court means what it says and should be taken seriously.
4. Appellant’s Opening Brief
After the transcripts are completed and sent to the Court of Appeal, a criminal appellate attorney will carefully read the court transcripts to determine what, if any, legal errors were made in the trial court. The attorney will then submit a written "brief" to the Court of Appeal explaining what errors occurred and asking the Court for a specific remedy—usually reversal, which results in either an acquittal or a "remand," which returns the case to the Superior Court for more proceedings. These additional proceedings may include a new trial or could be a new opportunity to plea bargain the case.
The brief is usually quite long. It includes summaries of the facts of the case and legal argument citing other cases and statutes and rules that show the trial court made errors in the earlier proceedings.
A "Wende" brief is filed only where counsel finds no arguable appellate issues. This is also called a "no-merit" brief under People v. Wende or In re Sade C. An arguable issue is an issue that in counsel's professional judgment has a reasonable potential for success, and would result in a reversal or modification of the judgment if successful.
Citation in California appeals cases is governed by California Style Manual. You cannot cite a Court of Appeal opinion which has been depublished, or one in which review has been granted by the Supreme Court.
Most California Court of Appeal districts now receive electronic copies of briefs, in addition to filing the paper copies. Such submissions are still voluntary, but the courts like electronic submissions. It makes the court’s work easier when searching through the briefs, matching the briefs with the transcripts (which the court may receive in electronic form as well as in hard copy), and possibly adapting portions of the statements for their opinions. Electronic filing is expected to become the norm in the near future.
When filing electronically, appellate counsel still must file and serve the regular paper copies of the briefs in exactly the same manner as in quondam times. These are the official, filed pleadings, and nothing in this electronic submission program alters or amends the normal brief format and filing requirements.
The court accepts briefs by email or by mailing the court a floppy disk. If you send a floppy disk, it is to be mailed along with the hard copies of the brief. The submission is in .PDF format.
Court rules require that the electronic brief be a complete and exact representation of the written brief—even the pagination and formatting must be identical. The only exception is that it is alright to have the Table of Authorities and/or the Table of Contents at the end of the electronic brief, if you initially have the Table as a separate file and it is easier for you to insert the Tables at the end of the brief. However, the Tables (and the Proof of Service) must be merged into the brief and saved together in one single file.
5. Respondent’s Brief
The respondent is the California Attorney General, which in legal terms gets to call itself "The People," or "The People of the State of California," on whose behalf the Attorney General prosecutes cases. This is a different office than the county District Attorney that originally prosecuted the case. The attorney for the respondent, a Deputy Attorney General, will review both the court transcripts and the appellant’s opening brief. The Attorney General will then file their own brief contesting the legal errors claimed by the appellant.
6. Appellant’s Reply Brief
Because the appellant has the burden of persuasion on appeal, the courts permit the appellant to file a second brief called a "Reply Brief" at their option. In a reply brief, the appellate attorney will oppose points raised by the opposing side. Typically, no new issues can be raised in the reply brief but the brief can correct errors the Court of Appeal may reach if it relies on the existing briefing without further comment from a California appellate lawyer representing the defendant.
Reply briefs are due twenty days after the respondent's brief is filed. Reply briefs can be important and are filed in most cases, although they are not necessary in all cases. Since the Court of Appeal often has a draft opinion ready by oral argument, it is usually important to file a reply brief in order to make a succinct response to the Attorney General's arguments if they are not fully dealt with in your opening brief.
7. Oral argument.
Appellate counsel will receive a notice from the Court of Appeal requiring that a response within ten days if you want oral argument.
8. Petition for Rehearing.
After the Court of Appeal issues an opinion, appellant (or the People) can petition for rehearing within 15 days after the filing of the court's opinion. (See Rule 8.268(b)(1).)
9. Petition for review.
A petition for review must be filed—if at all—in the California Supreme Court within 10 days after the decision of the Court of Appeal becomes final. (Rule 8.500(e).) The decision on a direct appeal becomes final 30 days after the opinion is filed. (Rule 8.264(b)(1).) A decision denying a habeas corpus petition without issuing an order to show cause is final on the same day that the decision in a related appeal is final, if the two decisions are filed on the same day. (Rule 8.264(b)(4).) Separate petitions are required if the Court of Appeal decides the appeal and denies the writ without an order to show cause and without formally consolidating the two proceedings. (Rule 8.500(d).) If the Court of Appeal formally consolidated the two proceedings, then a single petition for review would be filed. If the case presents new or important issues of law, or involves issues on which the Courts of Appeal are split, an appellant would especially want to petition the Supreme Court for review. (See Rule 8.500(b).)
