The California Appellate Project

In the United States, every defendant who has been charged with a misdemeanor or a felony is entitled to legal representation…even defendants who cannot otherwise afford an attorney.¹ This right applies not only to trial proceedings, but also appeals.

The California Appellate Project ("CAP") exists to help indigent defendants secure the most qualified representation when appealing their California criminal convictions.

In this article, our California criminal appeals attorneys² discuss the California Appellate Project by addressing the following issues:

1. What is the California Appellate Project?

2. Who has a Constitutional right to appointed counsel for criminal appeals?

3. What financial factors make one eligible or ineligible for a CAP lawyer?

4. I've been convicted in court...How do I go about getting a CAP lawyer to represent me?

5. What are the pros and cons of using a CAP lawyer versus hiring private counsel?

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California’s Appellate Process; Misdemeanor Appeals; Felony Appeals; Grounds on Which to Appeal a California Conviction; Timeframes and Deadlines to Appeal a Criminal Conviction in California; The Chances of Overturning a California Conviction on Appeal; and Appealing "Three Strikes" Sentences in California.

1. What is the California Appellate Project?

Established in 1983 by the State Bar of California, the California Appellate Project is a non-profit law firm. Its original purpose was to recruit and assist private attorneys in their endeavor to represent indigent clients who sought death penalty and other criminal appeals before the California Supreme Court. A San Francisco CAP office opened to achieve that goal.

Then in 1984, CAP began performing similar services in criminal, juvenile delinquency³ and juvenile dependency cases that were pending before the California Court of Appeal.

The California Appellate Project began expanding and today has five offices to serve each of the six statewide judicial districts that comprise the California Court of Appeal. And although most of these offices go by their own names rather than by "CAP", they all share the same responsibility: to recruit and assist appointed lawyers who represent indigent clients in their fight to appeal unjust criminal convictions.

2. Who has a Constitutional right to appointed counsel for criminal appeals?

The need for the California Appellate Project arises from a 1963 United States Supreme Court case which held that an indigent defendant convicted of a felony has the right to a court-appointed attorney for his/her felony appeal.⁴

California Rules of Court also mandate that a defendant convicted of a misdemeanor has the right to court-appointed counsel for a California misdemeanor appeal if the defendant

1. is subject to incarceration or a fine of more than $500 (including penalty and other assessments), or who is likely to suffer significant adverse collateral consequences as a result of the conviction; and



2. was represented by appointed counsel in the trial court or establishes indigency at the time of the appeal.⁵

In addition, the appellate division of the superior court…which is where you would file a misdemeanor appeal…has the discretion to appoint counsel for any other indigent defendant who wishes to appeal his/her misdemeanor conviction.⁶

And while a defendant convicted of a misdemeanor has the right to an appeal, CAP does not provide misdemeanor appeal representation, as it deals exclusively with felony appeals.

3. What financial factors make one eligible or ineligible for a CAP lawyer?

Whether or not you are considered "indigent"…and therefore eligible to be represented by a CAP lawyer…is determined on a case-by-case basis. There is no specific dollar figure that renders you eligible or ineligible for representation.

In order to determine eligibility, the Court of Appeal will require you to complete a financial statement regarding your income and any assets. The Court will then consider your current financial obligations…such as your rent/mortgage, need to support a family, pre-existing debts, etc….and balance those against your assets and income. Based on this, the Court decides whether you can afford to hire a private attorney or whether you qualify for a CAP lawyer.

4. I've been convicted in court. How do I go about getting a CAP lawyer to represent me?

If you elect to appeal your California felony conviction, you must file a Notice of Appeal with the trial court within 60 days of the court’s ruling. ∗For more information about this Notice, as well as the other filing requirements for a California appeal, please review our article on the California’s Appeals Process.

Usually your trial lawyer files the Notice of Appeal on your behalf.

One of the questions raised in that Notice is whether you were represented by a court-appointed attorney during the trial and, even if you weren’t, whether you are now requesting that the court appoint an attorney for your appeal.

If you were represented by a court-appointed attorney at the trial court level, the court will automatically refer your case to the California Appellate Project once it processes your Notice of Appeal. An attorney from CAP will then contact you.

If you had private representation at the trial level…but are requesting a panel attorney for your appeal…the court will conduct a financial evaluation in accordance with section 3 above to determine your eligibility.

If the court declares that you are, in fact eligible for CAP representation, it will refer the case to CAP and a panel attorney will contact you.

5. What are the pros and cons of using a CAP lawyer versus hiring private counsel?

The California Appellate Project prides itself on its level of representation. It strives to ensure that its attorneys have all available resources to provide effective representation to their clients. To achieve that goal, CAP offers their lawyers training seminars and assistance on selected cases.

Nevertheless, all public agencies have limitations. Oftentimes appointed attorneys may have too many clients to dedicate very much time to any particular one. Resources are limited and must be shared. The state is constrained as to how many lawyer hours it can afford.

As California appellate lawyer Al Amer⁷ explains, "A private attorney often has the luxury of a smaller caseload and thus more time to devote to individual clients. And private attorneys know that a majority of their business will come from client referrals. This means that private counsel must strive to meet or exceed client expectations in order to continue to receive new business."

And remember…the California Appellate Project exclusively handles felony appeals. If you are appealing a misdemeanor conviction, you are not eligible for their services.

For more information…

For more information about California’s Appellate Project, or to discuss your case confidentially with one of our California criminal appellate attorneys,⁸ we invite you to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Online Resources:

First District Appellate Project ("FDAP") - Appointed counsel administrator for the 1st District of the California Court of Appeal.

California Appellate Project ("CAP"), Los Angeles - Appointed counsel administrator for the 2nd District of the California Court of Appeal.

Central California Appellate Program ("CCAP") - Appointed counsel administrator for the 3rd and 5th Districts of the California Court of Appeal.

Appellate Defenders, Inc. ("ADI") - Appointed counsel administrator for the 4th District of the California Court of Appeal.

Sixth District Appellate Project ("SDAP") - Appointed counsel administrator for the 6th District of the California Court of Appeal.

California Appellate Project ("CAP"), San Francisco - Appointed counsel administrator for the Supreme Court on capital (that is, death penalty) cases.

Legal References:

¹The Constitution of the United States of America - Sixth Amendment.

²Our California criminal appeals attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

³Our California juvenile crime defense attorneys represent clients who have been charged with cases alleging juvenile delinquency.

⁴Douglas v. People of State of Cal. (1963) 372 U.S. 353, 355, 356. ("In spite of California's forward treatment of indigents, under its present practice the type of an appeal a person is afforded in the District Court of Appeal hinges upon whether or not he can pay for the assistance of counsel. If he can the appellate court passes on the merits of his case only after having the full benefit of written briefs and oral argument by counsel. If he cannot the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided. At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required…[and at 357] But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor…There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.")

⁵California Rules of Court, Title 8, Division 2, Chapter 3, Article 1, Rule 8.851 --Appointment of appellate counsel. ("(a) Standards for appointment. (1) On application, the appellate division must appoint appellate counsel for a defendant convicted of a misdemeanor who: (A) Is subject to incarceration or a fine of more than $500 (including penalty and other assessments), or who is likely to suffer significant adverse collateral consequences as a result of the conviction; and (B) Was represented by appointed counsel in the trial court or establishes indigency. (2) On application, the appellate division may appoint counsel for any other indigent defendant convicted of a misdemeanor. (3) A defendant is subject to incarceration or a fine if the incarceration or fine is in a sentence, is a condition of probation, or may be ordered if the defendant violates probation. (b) Application; duties of trial counsel and clerk. (1) If defense trial counsel has reason to believe that the client is indigent and will file an appeal, counsel must prepare and file in the trial court an application to the appellate division for appointment of counsel. (2) If the defendant was represented by appointed counsel in the trial court, the application must include trial counsel's declaration to that effect. If the defendant was not represented by appointed counsel in the trial court, the application must include a declaration of indigency in the form required by the Judicial Council. (3) When the trial court receives an application, the clerk must promptly send it to the appellate division. A defendant may, however, apply directly to the appellate division for appointment of counsel at any time after filing the notice of appeal. (c) Defendant found able to pay in trial court. (1) If a defendant was represented by appointed counsel in the trial court and was found able to pay all or part of the cost of counsel in proceedings under Penal Code section 987.8 or 987.81, the findings in those proceedings must be included in the record or, if the findings were made after the record is sent to the appellate division, must be sent as an augmentation of the record. (2) In cases under (1), the appellate division may determine the defendant's ability to pay all or part of the cost of counsel on appeal, and if it finds the defendant able, may order the defendant to pay all or part of that cost.")

⁶See same.

⁷California appellate lawyer Al Amer represents clients seeking appeals in the South Bay (including Long Beach and Torrance) as well as throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster.

⁸Our California criminal appellate attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

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