Judges can make bad rulings. Prosecutors can act unethically. Defense lawyers can fail to act with competence. And juries can return the wrong verdict.
If any of these things happened to you, and it led to a criminal court conviction, don’t despair. The law offers a second chance at justice.
We’re a statewide law firm of former police and former prosecutors. We’ve switched sides and now we help clients with the process of appealing California criminal convictions. We work on everything from misdemeanor and felony appeals, to the appeal of three strikes sentences.
In this article, our California criminal appellate attorneys1 explain how to appeal criminal convictions by addressing:
2.2. Regarding guilty or “no contest” pleas and alleged violations of California’s search and seizure laws…
Most importantly, an appeal is NOT a new trial before a higher court. It is, instead, a limited review of a conviction by the appeals (or “appellate”) court. The appellate court does not
- accept new evidence,
- retry the case, or
- hear testimony from witnesses.
Instead, the appellate court…which is the “Appellate Division of the Superior Court” for California misdemeanor appeals and the California Court of Appeal for felony appeals…reviews the lower court’s proceedings and judicial rulings to determine if there were legal errors that substantially affected the rights of either party.
The party who files the appeal is referred to as the “appellant”. The party opposing the appeal is referred to as the “respondent”.
If, however, you are pursuing a federal appeal based on a federal crime, you would file your appeal first with the United States Court of Appeal for the Ninth Circuit and, if need be, ultimately with the Supreme Court of the United States. These appeals are governed by different rules which are addressed in our article on Federal Criminal Appeals in California.
For more information about the types of legal errors and issues upon which a California appeal may be based, please review our article on Grounds on Which to Appeal a Criminal Conviction in California.
Once you are convicted at a bench trial or jury trial in the California Superior Court (commonly referred to as the trial court), you have the right to appeal that conviction.2 You…or your California appeals lawyer…initiates an appeal by filing a “Notice of Appeal” within 30-60 days following your trial court judgment.3
This timeframe…and, for that matter, all of the timeframes that govern California’s appeal process require strict compliance. They are set forth in California’s Rules of Court, Title 8. Failing to meet these deadlines will jeopardize your case.
This is simply one reason why having a seasoned California appeals lawyer is essential. Without a thorough understanding of the timeframes and deadlines relevant to appeal a criminal conviction in California, it doesn’t matter how strong your appeal is…a missed deadline can all but forfeit your appellate rights.
Generally speaking, an appeal must be taken after a final judgment. A “final” judgment is
- a sentence (for example, many people appeal a California “Three Strikes” sentence),
- a final conviction or an order granting probation,
- an insanity commitment,
- a mentally disordered offender commitment, or
- an addiction commitment.4
You may file a “general notice of appeal,” which appeals the judgment following a jury or court trial or contested probation revocation. This notice does not require that you enumerate any specific issues, and your California appellate attorney is not limited by any designation of issues by your trial attorney. And you are always free to appeal any order that substantially affected your Constitutional rights.5
2.2. Regarding guilty or “no contest” pleas and alleged violations of California’s search and seizure laws…
Appealing a guilty or nolo contendere (“no contest”) plea…or an admission of a probation violation adds complexity to the notice of appeal. If you are strictly appealing a sentencing issue, the notice of appeal must state that a sentencing appeal is being taken which does not challenge the validity of the plea itself.6
For an appeal of a Fourth Amendment matter…that is, a matter regarding an alleged violation of California’s search and seizure laws…you must specify in the notice of appeal that you intend to raise a search and seizure issue. Non-compliance with these rules will render the appeal inoperative and subject to dismissal.7
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.8 And even then, in order to appeal these issues, the trial court must first issue a certificate of probable cause in order to prevent frivolous appeals.9 Once this certificate is issued, you may appeal any cognizable issues in addition to those you originally identified.10
A “certificate of probable cause” may be issued following a written statement that you or your attorney execute under oath or penalty of perjury that demonstrates reasonable
- jurisdictional, or
- other grounds
contributed to illegal proceedings.11 This statement and corresponding certificate of probable cause are only required in adult California felony appeals. Neither misdemeanor appeals nor juvenile court proceedings require this type of statement. And capital cases…that is, cases where the defendant has been sentenced to death…are appealed automatically and do not require that the defendant or defense attorney take any action.12
As with all appeals from the Superior Court, you must file the required statement within 60 days of the entry of judgment.13 Once you file your statement, the trial court must grant or deny the request within 20 days.14 And unless your statement is clearly frivolous and does not comply with applicable law, the court abuses its discretion if it fails to issue a certificate of probable cause.15
But remember, this statement and certificate of probable cause are not required for every felony appeal…they are only required for appeals that follow a guilty plea or involve search and seizure issues.
Despite the fact that California appellate rules clearly state that a felony appeal must be filed no later than 60 days after the entry of judgment…or no later than 30 days for a misdemeanor appeal…there are times when you might not be able to meet those deadlines.16 When that is the case, you must ask the court to grant you relief from your default. And, fortunately, there are times when the court will do just that.
There are primarily two grounds upon which the court will grant relief from late notices…
- the trial attorney failed to perform one or more duties relating to a possible appeal, and
- the principle of constructive filing.
The primary theory which may allow relief from default is that your trial attorney failed to advise you of your right to appeal. When this is the case, California’s criminal appeals process provides relief.
A trial attorney has the duty to provide his/her client with “advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal.”17 Thus, if your trial attorney fails to advise you of your right to appeal, the court should grant relief if you promptly move to institute an appeal once you discover you have this right.18
And if your trial lawyer did inform you that you have the right to appeal…but failed to file a timely notice of appeal after you requested he/she do so…the court may grant that relief and permit an appeal.19
Aside from default occasioned by the ineffective assistance of trial counsel, a defendant may also rely on the trial court’s failure to fulfill its duty. California appellate law requires the trial judge to advise a defendant of his/her right to appeal if the defendant has either stood trial or had a contested probation revocation hearing.20
Essentially this means that if neither your attorney nor the court advised you that you have the right to appeal, you have a legitimate reason for filing a late appeal…and a legitimate reason for obtaining relief from that default.
The second common ground upon which the California criminal appeals process will generally grant relief from filing a late notice of appeal is referred to as constructive filing. Typically, this theory comes into play when an incarcerated prisoner asks the prison or jail to mail his/her notice of appeal to the Superior Court.
As long as you give your notice to the jail/prison custodian within the allotted timeframe, the court will likely grant relief if the court receives your notice after the deadline.21 Similarly, if you represent yourself and accidentally attempt to file your notice with the wrong court, the court will deem it as timely filed as long as it was mailed and otherwise would have been received during the proper timeframe.22
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 mislead you concerning your right of appeal, grounds for relief from default may well exist.23 The same rule applies to court officers.24
The bottom line is that the failure to file a timely notice of appeal is very serious but not necessarily the end of your opportunity to pursue an appellate remedy. If you quickly seek relief once you learn of your right of appeal, there is a good chance that the court will allow your appeal to move forward.
Your motion to be released on bail must be made in the trial court. If the court denies that motion, you may appeal the issue to the Court of Appeal but only after you demonstrate that you first applied to the trial court and that the court unjustifiably refused to grant your request.27
In order to qualify for bail release following a felony conviction, you must demonstrate by clear and convincing evidence…that is, that it is “highly probable” that you
- are not likely to flee,
- do not pose a danger to any other person or to the community, and
- are not appealing in an effort to delay your case but rather that you are appealing a valid legal issue that…if decided in your favor…is likely to result in reversal.28
After you file a notice of appeal, the Superior Court is ordered to prepare two “transcripts”.
The first is the reporter’s transcript. The court reporter who sat in on the trial prepares a transcript of everything that was said during the court proceedings. If there was no court reporter, a transcript will typically be generated from the electronic recording of the proceedings.
The second transcript is the clerk’s transcript. The clerk’s transcript is comprised of all the other materials…exhibits, documents, etc….that were collected and placed into the court’s file.29
If you or your California appeals lawyer notices that a document or transcript is missing from the record, you may request that it be added if it is an item that should normally be in the record for an appeal. These types of “normal” items include (but are not limited to):
- the accusatory pleading and any amendments,
- any written communications between the judge and jury, and
- the court minutes.30
If the missing document or transcript is not a “normal” appellate record item, you must file an “augment motion” with the Court of Appeal seeking permission to add more material to the transcript.31
When the missing item is one which is not a public record…such as a
- medical or psychological report, or
- sealed transcript involving the identity of a confidential informant,
you should request that the Superior Court clerk send the item, under seal, directly to the Court of Appeal. At that point, you may file a motion for the Court of Appeal to unseal the item. If the Court denies your request, you can ask that the Court privately review the item(s) outside the presence of the parties…a process referred to as “in camera”.32
In addition to reviewing the trial record, your California criminal appeals attorney should contact your trial counsel to get that attorney’s full impression of the case. And although this can be awkward in cases where your appeals attorney is raising an issue of ineffective assistance of counsel, it is still an important part of the criminal appeals process in order to ensure the most comprehensive appeal.
It is also a good idea for your California appeals attorney personally to review 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, as reviewing pretrial motions may reveal additional grounds for appellate review.
The appellant’s “opening brief” is your first opportunity to explain to the Court of Appeal why you believe you are entitled to appellate relief. This relief may include (but is not limited to):
- a reversal of your conviction,
- a new trial, or
- a new sentence.
The brief is usually quite long. It includes summaries of the facts of the case and legal argument citing other cases, statutes and rules that illustrate the trial court’s legal errors.
You can submit your brief by filing a paper copy and by additionally filing an electronic copy. You can provide an electronic copy either via email or by mailing the court a disk in a .pdf format. Electronic submissions must still comply with all of the rules and regulations that govern the California appeals process.
And as California appeals lawyer John Murray33 explains, “The rules that govern briefs are technical and require strict compliance. They apply to every aspect of the brief from the time the brief must be served, to the maximum length of the brief, to the color paper you use for the brief. Any deviation from these rules will result in prejudice to your case…and could even lead to a dismissal of your appeal.”34
If, after reviewing the case file and trial records, your attorney is simply unable to find any legitimate arguable appellate issues…that is, an issue that he/she believes has a reasonable potential for success…he/she may file a “Wende” brief. A “Wende” brief is filed only where counsel finds no arguable appellate issues…consequently, this is also called a “no-merit” brief.35
Because the appellant’s attorney is required to submit a brief, this allows the attorney to fulfill his/her duty to the client without breaching his/her professional duty by filing a frivolous appeal. When an attorney files this type of brief, he/she is silent on the merits of the case…or rather the lack thereof…and simply expresses his/her availability to brief any issues in which the Court may have an interest.
The respondent is typically the prosecution…that is, “The People” or “The People of the State of California”…although there may be times when the prosecution is the appellant. In the latter case, the respondent’s brief is filed by the defendant.
The respondent’s brief is filed in response to the appellant’s opening brief. The purpose of this brief is to justify any of the alleged legal errors that the appellant claims were made.
This brief, too, must comply with the rules and regulations that govern California’s appellate process.
Because the appellant has the burden of proof on appeal…that is, the responsibility of proving his/her position…the court permits the appellant to file a second brief called a “Reply Brief” if he/she desires.
You are not allowed to raise new issues in a reply brief. You are only permitted to respond to the points that the respondent raised in his/her brief.
Reply briefs are due twenty days after the respondent’s brief is filed.36
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…which means it has usually already made up its mind…it is usually important to file a reply brief in order to make a succinct response to the respondent’s arguments if you do not fully address them in your opening brief. The failure to do so may contribute to an adverse ruling.
Oral argument is your opportunity to do just that…orally argue your position to the Court. While it is okay to allow your brief to speak for itself, the California criminal appeals process provides you with this chance to attempt to persuade the Court in person to rule in your favor.
Because oral arguments must be brief…depending on whether you are in the Appellate Division of the Superior Court or the Court of Appeal, they may only be a maximum of 10 or 30 minutes respectively…this is not a time to restate the facts of your brief.
During your oral argument, your California appeals lawyer will want to make sure that he/she highlights the most important parts of your brief, clarifies them, and answers any questions from the appellate court judges. This is the time to make sure that the Court understands exactly why you believe you are entitled to relief.
After all parties have submitted their briefs…or the timeframe for doing so has lapsed…the Court of Appeal will notify the parties as to the date of oral argument.
If you are unsatisfied with the court’s ruling, you may petition for rehearing within 15 days after the court files its opinion.37
The prevailing party does not file an answer to the petition for rehearing unless the court specifically requests it. If the court does so, the prevailing party must file its answer within 8 days of the filing date of the court’s request, unless the court indicates a different timeframe. The court will not ordinarily grant a rehearing without requesting an answer.38
If the case is already before the California Supreme Court, the prevailing party may file an answer to a petition for rehearing even without the court’s permission. This answer must be filed within 8 days after the petition for rehearing is filed.39
In either court, the petition and any answer must conform to the general requirements that govern appellate briefs.40
Once the Court of Appeal announces its decision, either party has an opportunity to apply to the Supreme Court of California for review. The Supreme Court is also free to review a lower court’s decision on its own motion.
Your petition for review must be submitted within 10 days after the Court of Appeal files its opinion.41 The Supreme Court does not automatically accept every appeal and, in fact, is quite discriminating in deciding which cases to review. It may do so
- to secure uniformity of decision or settle an important question of law,
- when the Court of Appeal lacked jurisdiction,
- when the decision of the Court of Appeal lacked the concurrence of sufficient qualified judges, or
- to transfer the case back to the Court of Appeal with instructions for further proceedings.42
While a petition for rehearing is ordinarily not a prerequisite for a petition for review, it is a necessity if you want to challenge the Court of Appeal’s statement of the facts or issues.43
The chances of overturning a California conviction on appeal generally are not great. That said, if you have a legitimate argument it is certainly worth the fight. Cases do get reversed, remanded, and overturned…but it often takes a tenacious California appeals lawyer who can identify mistakes at the trial court level and then present them persuasively to the appellate court.
And if you find yourself in a situation where you cannot afford a private California appeals lawyer, help is still available. The California Appellate Project…which is essentially the “public defender’s office for California felony appeals”…exists for those who qualify for their low-income appellate services.
If you or a loved one is in need of help with appeals and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For information about the Nevada appeals process, go to our page on the Nevada appeals process.
1Our California 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. Please contact us for more information about California’s appellate process.
2California Penal Code 1237 PC — How to appeal a California criminal conviction – appeal by defendant. (“An appeal may be taken by the defendant [or his/her California appeals lawyer]: (a) From a final judgment of conviction [by a judge or following a California jury trial] except as provided in Section 1237.1 [regarding presentence custody credits] and Section 1237.5 [regarding guilty or nolo contendere “no contest” pleas or probation revocations, endnote 9, below]. A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial. (b) From any order made after judgment, affecting the substantial rights of the party.”)
3California Rules of Court Title 8, Division 2, Chapter 3, Article 1, Rule 8.853, subdivision (b) — Time to appeal under California’s appeal process. (“(a) Normal time A notice of [a California misdemeanor] appeal must be filed within 30 days after the rendition of the judgment or the making of the order being appealed. If the defendant is committed before final judgment for insanity or narcotics addiction, the notice of appeal must be filed within 30 days after the commitment. (b) Cross-appeal If the defendant or the People timely appeal from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is either the time specified in (a) or 15 days after the trial court clerk mails notification of the first appeal, whichever is later. (c) Premature notice of appeal A notice of appeal filed before the judgment is rendered or the order is made is premature, but the appellate division may treat the notice as filed immediately after the rendition of the judgment or the making of the order. (d) Late notice of appeal The trial court clerk must mark a late notice of appeal “Received [date] but not filed” and notify the party that the notice was not filed because it was late.”)
See also California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.308 — Time to appeal under California’s appellate process. (a) Normal time Except as provided in (b) or as otherwise provided by law, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. (b) Cross-appeal If the defendant [or his/her California appeals attorney] or the People timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is either the time specified in (a) or 30 days after the superior court clerk mails notification of the first appeal, whichever is later. (c) Premature notice of appeal A notice of appeal filed before the judgment is rendered or the order is made is premature, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order. (d) Late notice of appeal The superior court clerk must mark a late notice of appeal “Received [date] but not filed,” notify the party that the notice was not filed because it was late, and send a copy of the marked notice of appeal to the district appellate project.”)
See also California Rules of Court, Title 8, Division 1, Chapter 1, Article 3, Rule 8.66 — Extending time because of public emergency
4See California Penal Code 1237 PC, endnote 2, above.
6California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.304 — How to file the appeal in the California appeals process; certificate of probable cause, subdivision (B)(4)(b).
7See California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.304 — Filing the appeal in California’s appellate process; certificate of probable cause, endnote 6, above.
8People v. Turner (1985) 171 Cal.App.3d 116, 123-129; lists issues which survive a guilty plea.
See also In re Chavez (2003) 30 Cal.4th 643, 649. (“Instead, appellate review is limited to issues that concern the “jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.” ( Hoffard, supra, 10 Cal.4th at p. 1178; see People v. Kaanehe (1977) 19 Cal.3d 1, 9 [136 Cal.Rptr. 409, 559 P.2d 1028]; Ribero, supra, 4 Cal.3d at p. 63.) FN2 FN2 In Ribero, supra, 4 Cal.3d at page 63, we enumerated the issues that, by the time of our decision, had been determined to be appealable following the entry of a plea of guilty or no contest: “insanity at the time of the plea …, ineffective waiver of constitutional rights, ineffective assistance of counsel …, a plea obtained by misrepresentation, … or other abuse of discretion in denying a motion to withdraw a guilty plea….” (Citations omitted.) In subsequent decisions, the Courts of Appeal have found additional issues to be appealable, including the denial of pretrial diversion, the denial of a motion to dismiss based upon collateral estoppel, the failure to seek restitution prior to the filing of criminal charges of welfare fraud, and violation of the interstate agreement on detainers. ( People v. Meyer (1986) 183 Cal.App.3d 1150, 1157-1158 [228 Cal.Rptr. 635].) These distinctions between an appeal from a final judgment of conviction following a plea of not guilty and trial, and an appeal from a final judgment of conviction following a plea of guilty or no contest, are reflected in distinct but analogous statutes and related rules of court defining the procedure applicable to the taking of each type of appeal.”)
9California Penal Code 1237.5 PC — Appeal process by defendant from judgment of conviction upon plea of guilty or nolo contendere or revocation of probation; certificate of probable cause; operative date. (“No appeal shall be taken by the defendant [or from his/her California appeals lawyer] from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: (a) The defendant has filed with the trial 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. (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”)
See also People v. Earls (1992) 10 Cal.App.4th 184, 190. (“The purpose of section 1237.5 is to discourage and weed out frivolous or vexatious appeals following guilty pleas. When a defendant [or his/her California appeals attorney] fails to satisfy the requirements of section 1237.5 and the record discloses no justification therefor, the appeal is not operative and the appropriate disposition is dismissal.”)
10People v. Hoffard (1995) 10 Cal.4th 1170, 1173-1174. (“Penal Code section 1237.5 [endnote 9, above – California’s appeals process] precludes a criminal defendant from appealing a conviction based on a guilty plea, on grounds going to the validity of the plea or the preplea proceedings, unless the defendant has filed with the trial court a statement of grounds for appeal and the trial court has issued a certificate of probable cause. The question presented here is whether, once the court has issued such a certificate, the defendant may raise on appeal cognizable issues other than those identified in the statement of grounds…Nothing in section 1237.5 indicates the defendant must specify, and the trial court certify as nonfrivolous, each issue to be raised on appeal. Such a rule is unnecessary to the purposes of the statute and would be inefficient in operation.”)
11California Penal Code section 1237.5, subdivision (a), endnote 9, above.
12In re Joseph B. (1983) 34 Cal.3d 952, 955. (“By its terms, Penal Code section 1237.5 does not apply to minors. The statute refers to defendants who stand convicted upon a guilty or nolo contendere plea. Further, minors charged with violations of the Juvenile Court Law are not “defendants.” They do not “plead guilty,” but admit the allegations of a petition. Moreover, “adjudications of juvenile wrongdoing are not ‘criminal convictions.’ “”)
See also 6 Witkin, Cal. Crim. Law 3d (2000) Crim Appeal, 9 Statutory Requirements: Statement and Certificate, p. 242. (“The rule that an appeal after a plea of guilty can only be based on jurisdictional defects (supra, 8) is implemented by P.C. 1237.5 and by C.R.C., Rule 31(d). The statute applies in felony cases. (See Avila v. Municipal Court (1983) 148 C.A.3d 807, 812, 196 C.R. 286 [while P.C. 1237.5 limits cognizable issues on appeal following a plea of guilty or nolo contendere to a felony, there is no equivalent misdemeanor statute].) However, because the appeal in a capital case is automatic and requires no action by defense counsel or defendant, P.C. 1237.5 does not apply to such appeals. (People v. Massie (1998) 19 C.4th 550, 568, 79 C.R.2d 816, 967 P.2d 29.)”)
13See California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.308 — Time to appeal in California’s appeal process, endnote 3, above. (“Normal time. Except as provided in (b) or as otherwise provided by law, a notice of appeal and any statement required by Penal Code 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66, no court may extend the time to file a notice of appeal.”)
14Penal Code section 1237.5, subdivision (b), endnote 9, above. (“(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”)
See also California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.304, subdivision (b), endnote 6, above — How to appeal a California criminal conviction; certificate of probable cause, subdivision.
15People v. Hoffard at 1178-1179, endnote 10, above. (“”It is not the trial court’s responsibility to determine if there was an error in the proceedings. The trial court’s sole objective [under California’s appeals process] is to eliminate those appeals ‘having no possible legal basis’ by refusing to issue a certificate of probable cause. [Citations.]” ( People v. Holland (1978) 23 Cal.3d 77, 84 [151 Cal.Rptr. 625, 588 P.2d 765].) The trial court must issue a certificate, we explained, if the defendant’s statement presents “any cognizable issue for appeal which is not clearly frivolous and vexatious ….” ( Ibid.)”)
16See endnote 3, above.
17California Penal Code 1240.1, subdivision (a) — Counsel on appeal; duties.
18Castro v. Superior Court (1974) 40 Cal.App.3d 614, 619-621. (“Thus, in United States v. Benthien (1st Cir. 1970) 434 F.2d 1031, 1032, the court held that a defendant who had not been advised of his right to appeal was automatically entitled to relief under 28 United States Codes, section 2255, and that such relief was available “without regard to whether or not the defendant had obtained knowledge of his rights from some other source.” The relief granted was simply to restore the defendant’s right of appeal and to direct the district court clerk to file the necessary notice of appeal. The same result was reached, less directly, in Paige v. United States (4th Cir. 1971) 443 F.2d 781, 782, where it was held that failure to comply with rule 32(a)(2) “requires a remand for resentencing and reinstatement of the right to appeal.””)
19Roe v. Flores-Ortega (2000) 528 U.S. 470, 477. (“As we have previously noted, “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel.” Id., at 688-689, 104 S.Ct. 2052. Rather, courts must “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct,” id., at 690, 104 S.Ct. 2052, and “[j]udicial scrutiny of counsel’s performance must be highly deferential,” id., at 689, 104 S.Ct. 2052. We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969); cf. Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (“[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit”). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes.”)
20California Rules of Court, Title 4, Division 5, Rule 4.470 — Notification of appeal rights in felony cases in the California appellate process. (“After imposing sentence or making an order deemed to be a final judgment in a criminal case on conviction after trial, or after imposing sentence following a revocation of probation, except where the revocation is after the defendant’s admission of violation of probation, the court must advise the defendant of his or her right to appeal, of the necessary steps and time for taking an appeal, and of the right of an indigent defendant to have counsel appointed by the reviewing court [that is, a California appeals lawyer]. A reporter’s transcript of the proceedings required by this rule must be forthwith prepared and certified by the reporter and filed with the clerk.”)
21In re Jordan (1992) 4 Cal.4th 116, 118-119. (“This case presents the question whether the “prison-delivery” rule remains viable in California. The rule provides that a prisoner’s notice of appeal is deemed timely filed if delivered to prison authorities within the 60-day filing period set forth in rule 31(a) of the California Rules of Court.FN1 (See People v. Lepe (1987) 195 Cal.App.3d 1347, 1349, fn. 2 [241 Cal.Rptr. 388]; People v. Wychocki (1987) 188 Cal.App.3d 1063, 1065 [233 Cal.Rptr. 830].)…As we shall explain, we conclude that the prison-delivery rule, well-established in California jurisprudence when the filing period prescribed by rule 31(a) was 10 days in duration, continues to apply even though the period for filing an appeal was substantially extended in 1972 (to the 60 days presently provided). The prison-delivery rule ensures that an unrepresented defendant, confined during the period allowed for the filing of an appeal, is accorded an opportunity to comply with the filing requirements fully comparable to that provided to a defendant who is represented by counsel or who is not confined. Affording such equality of treatment is as important under the current 60-day filing period as it was under the former 10-day filing period.”)
22People v. Griggs (1967) 67 Cal.2d 314, 317-318. (“Of course, the petition which we hold was a sufficient notice of appeal should have been filed with the superior court. But filing with the Court of Appeal [in the California appeal process] can, under some circumstances, be a proper substitute. ( People v. Jackson, 62 Cal.2d 803, 805-806 [44 Cal.Rptr. 452, 402 P.2d 140]; People v. Johnson, 61 Cal.2d 843, 846 [40 Cal.Rptr. 708, 395 P.2d 668]; People v. Dykes, 198 Cal.App.2d 75, 77 [17 Cal.Rptr. 564].) This is such a case…Petitioner is a layman, at that time unrepresented by counsel. He should not be charged with knowledge of such procedural matters. Nor should any significance be attached to the fact that petitioner filed his “notice of appeal” with the wrong district of the Court of Appeal. (Cf. Knowles v. Florida, 381 U.S. 763 [14 L.Ed.2d 723, 85 S.Ct. 1810].)…The “notice of appeal” here involved was filed within time.”)
23In re Benoit (1973) 10 Cal.3d 72, 83. (“Contemporaneously with the application of the theory of constructive filing to cases fitting within the factual context of Slobodion, the appellate courts proceeded to extend the theory to situations where the prisoner did not file the written notice of appeal in time because he relied upon representations or conduct of prison officials which lulled him into a false sense of security.”)
24People v. Martin (1963) 60 Cal.2d 615, 619. (“Of course, if the judgment had in fact been vacated and reinstated, as suggested by the court’s conduct, or if we deem this to have been the effect of the proceedings, the notice of appeal was timely. But regardless of the trial judge’s actual or manifested intentions, it is patently clear that the course of action adopted by the court misled defendant into delaying his appeal. Had his notice of motion for a new trial been dealt with in a manner that was consistent with the court’s recognition of the prior entry of judgment, defendant would have been able to file a notice of appeal which would have been timely as to the date of entry of the judgment. By virtue of the express order that the notice be filed, and the setting of a hearing date beyond the 10-day limit, defendant would reasonably have been misled into believing that the date of entry of the judgment was not a firm date. He was thus “lulled into a false sense of security” by representatives of the state under the rule expressed in People v. Calloway, supra, 127 Cal.App.2d 504, at page 506. It is true that defendant is not entitled to relief merely because, in representing himself, he may have suffered some disadvantage due to his ignorance of the law. ( People v. McBride, 122 Cal.App.2d 409 [264 P.2d 991]; Frey v. Superior Court, 5 Cal.App.2d 534, 536 [43 P.2d 342].) But while an experienced attorney might possibly have avoided the pitfall which the conduct of the court imposed, it nevertheless was that conduct which was the active ingredient in creating the hazard, and defendant’s inability to extricate himself therefrom does not foreclose his right to relief. (See In re Martin, 58 Cal.2d 133, 140- 141 [23 Cal.Rptr. 167, 373 P.2d 103].)”)
25California Penal Code 1272 PC — After conviction and pending probation or appeal in the California appellate process; the right to bail; bail discretionary; notice to prosecuting attorney.
26California Penal Code 1272.1 PC — Release on bail pending appeal; conditions; statement of reasons.
27California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.312 — Stay of execution and release on appeal in the California appeal process. (a) Application Pending appeal, the defendant may apply to the reviewing court: (1) For a stay of execution after a judgment of conviction or an order granting probation; or (2) For bail, to reduce bail, or for release on other conditions. (b) Showing The application [submitted by the defendant or his/her California appeals lawyer] must include a showing that the defendant sought relief in the superior court and that the court unjustifiably denied the application. (c) Service The application must be served on the district attorney and on the Attorney General. (d) Interim relief Pending its ruling on the application, the reviewing court may grant the relief requested. The reviewing court must notify the superior court under rule 8.489 of any stay that it grants.”)
28See California Penal Code 1272.1 PC, endnote 26, above.
29California Rules of Court, Title 8, Division 1, Chapter 3, Article 2, Rule 8.320 – Normal record; exhibits
31California Rules of Court Division 1, Chapter 5, Article 2, Rule 8.410 – Augmenting and correcting the record in the reviewing court under California’s appeals process.
32California Rules of Court Division 1, Chapter 3, Article 2, Rule 8.340.
See also California Rules of Court Division 1, Chapter 3, Article 2, Rule 8.328 — Confidential records. (a) Application. This rule applies to records required to be kept confidential by law but does not apply to records sealed under rules 2.550-2.551 or records proposed to be sealed under rule 8.160. (b) Marsden hearing. (1) The reporter’s transcript of any hearing held under People v. Marsden (1970) 2 Cal.3d 118 must be kept confidential. The chronological index to the reporter’s transcript must include the Marsden hearing but list it as “CONFIDENTIAL” or the equivalent. (2) The superior court clerk must send the original and one copy of the confidential transcript to the reviewing court with the record. (3) The superior court clerk must send one copy of the confidential transcript to the defendant’s appellate counsel or, if the defendant is not yet represented by appellate counsel, to the appellate project for the district. (4) If the defendant raises a Marsden issue in the opening brief, the defendant must serve and filed with the brief a notice stating whether the confidential transcript contains any confidential material not relevant to the issues on appeal. If the defendant states that the transcript contains confidential material not relevant to the issues on appeal, the notice must identify the page and line numbers of the transcript containing this irrelevant material. (5) If the defendant serves and files a notice under (4), stating that the transcript contains confidential material not relevant to the issues on appeal, the People may move to obtain a copy of any relevant portion of the confidential transcript. If the defendant serves and files a notice under (4), stating that no such irrelevant material is contained in the transcript, the reviewing court clerk must send a copy of the confidential transcript to the People. (6) If the defendant raises a Marsden issue in the opening brief but does not serve and file a notice under (4), on written application the People may request a copy of the confidential transcript. Within 10 days after the application is filed, the defendant may serve and file opposition to this application on the basis that the transcript contains confidential material not relevant to the issues on appeal. Any such opposition must identify the page and line numbers of the transcript containing this irrelevant material. If the defendant does not timely serve and file opposition to the application, the reviewing court clerk must send a copy of the confidential transcript to the People. (c) Other in-camera proceedings and confidential records [such as confidential informant information]. (1) Any party may apply to the superior court for an order that the record include: (A) A confidential, separately paginated reporter’s transcript of any in-camera proceeding at which a party was not allowed to be represented; and (B) Any item that the trial court withheld from a party on the ground that it was confidential. (2) The application and any ruling under (1) must comply with rule 8.324. (3) If the court grants an application for a reporter’s transcript of any in-camera proceeding, it may order the reporter who attended the in-camera proceeding to personally prepare the transcript. The chronological index to the reporter’s transcript must include the proceeding but list it as “CONFIDENTIAL-MAY NOT BE EXAMINED WITHOUT COURT ORDER” or the equivalent. (4) The superior court clerk must send the transcript of the in-camera proceeding or the confidential item to the reviewing court in a sealed envelope labeled “CONFIDENTIAL-MAY NOT BE EXAMINED WITHOUT COURT ORDER.” The reviewing court clerk must file the envelope and store it separately from the remainder of the record. (5) The superior court clerk must prepare an index of any material sent to the reviewing court under (4), except confidential material relating to a request for funds under Penal Code section 987.9, showing the date and the names of all parties present at each proceeding, but not disclosing the substance of the sealed matter, and send the index: (A) To the People; and (B) To the defendant’s appellate counsel or, if the defendant is not yet represented by appellate counsel [that is, a California appeals lawyer], to the appellate project for the district. (6) Unless the reviewing court orders otherwise, confidential material sent to the reviewing court under (4) may be examined only by a reviewing court justice personally; but parties and their attorneys who had access to the material in the trial court may also examine it.”) (d) Omissions. If at any time the superior court clerk or the reporter learns that the record omits material that any rule requires to be included and that this rule requires to be kept confidential: (1) The clerk and the reporter must comply with rule 8.340(b); and (2) The clerk must comply with the provisions of this rule requiring that the record be kept confidential and prescribing which party’s counsel, if any, must receive a copy of sealed material.”)
33California appeals lawyer John Murray 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.
34California Rules of Court, Division 1, Chapter 3, Article 3, Rule 8.360. Briefs by parties and amici curiae in the California appeal process. (“(a) Contents and form. Except as provided in this rule, briefs in criminal appeals must comply as nearly as possible with rules 8.200 and 8.204. (b) Length. (1) A brief produced on a computer must not exceed 25,500 words, including footnotes. Such a brief must include a certificate by appellate counsel or an unrepresented defendant stating the number of words in the brief; the person certifying may rely on the word count of the computer program used to prepare the brief. (2) A typewritten brief must not exceed 75 pages. (3) The tables, a certificate under (1), and any attachment permitted under rule 8.204(d) are excluded from the limits stated in (1) or (2). (4) A combined brief in an appeal governed by (e) must not exceed double the limit stated in (1) or (2). (5) 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 40 days after the record is filed in the reviewing court. (2) The respondent’s brief must be served and filed within 30 days after the appellant’s opening brief is filed. (3) The appellant must serve and file a reply brief, if any, within 20 days after the respondent files its brief. (4) 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. (5) If a party fails to timely file an appellant’s opening brief or a respondent’s brief, the reviewing court clerk must promptly notify the party by mail that the brief must be filed within 30 days after the notice is mailed, and that failure to comply may result in one of the following sanctions: (A) If the brief is an appellant’s opening brief: (i) If the appellant is the People, the court will dismiss the appeal; (ii) If the appellant is the defendant and is represented by appointed counsel on appeal, the court will relieve that appointed counsel and appoint new counsel; (iii) If the appellant is the defendant and is not represented by appointed counsel, the court will dismiss the appeal; or (B) If the brief is a respondent’s brief, the court will decide the appeal on the record, the opening brief, and any oral argument by the appellant. (6) If a party fails to comply with a notice under (5), the court may impose the sanction specified in the notice. (d) Service. (1) Defendant’s appellate counsel must serve each brief for the defendant on the People and the district attorney, and must send a copy of each to the defendant personally unless the defendant requests otherwise. (2) The proof of service under (1) must state that a copy of the defendant’s brief was sent to the defendant, or counsel must file a signed statement that the defendant requested in writing that no copy be sent. (3) For each appealing defendant, the People must serve two copies of their briefs on the defendant’s appellate counsel and one copy on the district appellate project. (4) A copy of each brief must be served on the superior court clerk for delivery to the trial judge. (e) When a defendant and the People appeal. When both a defendant and the People appeal, the defendant 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).”)
36See California Rules of Court, Division 1, Chapter 3, Article 3, Rule 8.360, endnote 34, above, subdivision “c”.
37California Rules of Court Division 1, Chapter 2, Article 4, Rule 8.268 — Rehearing. (“(a) Power to order rehearing. (1) On petition of a party or on its own motion, a reviewing court may order rehearing of any decision that is not final in that court on filing. (2) An order for rehearing must be filed before the decision is final. If the clerk’s office is closed on the date of finality, the court may file the order on the next day the clerk’s office is open. (b) Petition and answer. (1) A party may serve and file a petition for rehearing within 15 days after: (A) The filing of the decision; (B) A publication order restarting the finality period under rule 8.264(b)(3), if the party has not already filed a petition for rehearing; (C) A modification order changing the appellate judgment under rule 8.264(c)(2); or (D) The filing of a consent under rule 8.264(d). (2) A party [or his/her California appeals lawyer] must not file an answer to a petition for rehearing unless the court requests an answer. The clerk must promptly send to the parties copies of any order requesting an answer and immediately notify the parties by telephone or another expeditious method. Any answer must be served and filed within 8 days after the order is filed unless the court orders otherwise. A petition for rehearing normally will not be granted unless the court has requested an answer. (3) The petition and answer must comply with the relevant provisions of rule 8.204. (4) Before the decision is final and for good cause, the presiding justice may relieve a party from a failure to file a timely petition or answer. (c) No extension of time. The time for granting or denying a petition for rehearing in the Court of Appeal may not be extended. If the court does not rule on the petition before the decision is final, the petition is deemed denied. (d) Effect of granting rehearing. An order granting a rehearing vacates the decision and any opinion filed in the case and sets the cause at large in the Court of Appeal.”)
See also California Rules of Court Division 1, Chapter 3, Article 3, Rule 8.366 — Hearing and decision in the Court of Appeal in the California appellate process. (“(a) General application of rules 8.252-8.272. Except as provided in this rule, rules 8.252-8.272 govern the hearing and decision in the Court of Appeal of an appeal in a criminal case. (b) Finality. (1) Except as otherwise provided in this rule, a Court of Appeal decision in a proceeding under this chapter, including an order dismissing an appeal involuntarily, is final in that court 30 days after filing. (2) The following Court of Appeal decisions are final in that court on filing: (A) The denial of an application for bail or to reduce bail pending appeal; and (B) The dismissal of an appeal on request or stipulation. (3) If a Court of Appeal certifies its opinion for publication or partial publication after filing its decision and before its decision becomes final in that court, the finality period runs from the filing date of the order for publication. (4) If an order modifying an opinion changes the appellate judgment, the finality period runs from the filing date of the modification order. (c) Sanctions. Except for (a)(1), rule 8.276 applies in criminal appeals.”)
38See endnote 37, above.
39California Rules of Court, Division 1, Chapter 3, Article 9, Rule 8.536 — Rehearing. (“(a) Power to order rehearing. The Supreme Court may order rehearing as provided in rule 8.268(a). (b) Petition and answer. A petition for rehearing and any answer must comply with rule 8.268(b)(1) and (3). Any answer to the petition must be served and filed within eight days after the petition is filed. Before the Supreme Court decision is final and for good cause, the Chief Justice may relieve a party from a failure to file a timely petition or answer. (c) Extension of time. The time for granting or denying a petition for rehearing in the Supreme Court may be extended under rule 8.532(b)(1)(B). If the court does not rule on the petition before the decision is final, the petition is deemed denied. (d) Determination of petition. An order granting a rehearing must be signed by at least four justices; an order denying rehearing may be signed by the Chief Justice alone. (e) Effect of granting rehearing. An order granting a rehearing vacates the decision and any opinion filed in the case and sets the cause at large in the Supreme Court.”)
40Endnotes 37 and 39, above.
41California Rules of Court, Division 1, Chapter 9, Rule 8.500 — Petition for review in the California appeal process. (“(a) Right to file a petition, answer, or reply. (1) A party [or his/her California appeals attorney] may file a petition in the Supreme Court for review of any decision of the Court of Appeal, including any interlocutory order, except the denial of a transfer of a case within the appellate jurisdiction of the superior court. (2) A party may file an answer responding to the issues raised in the petition. In the answer, the party may ask the court to address additional issues if it grants review. (3) The petitioner may file a reply to the answer. (b) Grounds for review. The Supreme Court may order review of a Court of Appeal decision: (1) When necessary to secure uniformity of decision or to settle an important question of law; (2) When the Court of Appeal lacked jurisdiction; (3) When the Court of Appeal decision lacked the concurrence of sufficient qualified justices; or (4) For the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order. (c) Limits of review. (1) As a policy matter, on petition for review the Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal. (2) A party may petition for review without petitioning for rehearing in the Court of Appeal, but as a policy matter the Supreme Court normally will accept the Court of Appeal opinion’s statement of the issues and facts unless the party has called the Court of Appeal’s attention to any alleged omission or misstatement of an issue or fact in a petition for rehearing. (d) Petitions in nonconsolidated proceedings. If the Court of Appeal decides an appeal and denies a related petition for writ of habeas corpus without issuing an order to show cause and without formally consolidating the two proceedings, a party seeking review of both decisions must file a separate petition for review in each proceeding. (e) Time to serve and file. (1) A petition for review must be served and filed within 10 days after the Court of Appeal decision is final in that court. For purposes of this rule, the date of finality is not extended if it falls on a day on which the clerk’s office is closed. (2) The time to file a petition for review may not be extended, but the Chief Justice may relieve a party from a failure to file a timely petition for review if the time for the court to order review on its own motion has not expired. (3) If a petition for review is presented for filing before the Court of Appeal decision is final in that court, the Supreme Court clerk must accept it and file it on the day after finality. (4) Any answer to the petition must be served and filed within 20 days after the petition is filed. (5) Any reply to the answer must be served and filed within 10 days after the answer is filed. (f) Additional requirements. (1) The petition must also be served on the superior court clerk and the Court of Appeal clerk. (2) A copy of each brief must be served on a public officer or agency when required by statute or by rule 8.29. (3) The Supreme Court clerk must file the petition even if its proof of service is defective, but if the petitioner fails to file a corrected proof of service within 5 days after the clerk gives notice of the defect the court may strike the petition or impose a lesser sanction. (g) Amicus curiae letters. (1) Any person or entity wanting to support or oppose a petition for review or for an original writ must serve on all parties and send to the Supreme Court an amicus curiae letter rather than a brief. (2) The letter must describe the interest of the amicus curiae. Any matter attached to the letter or incorporated by reference must comply with rule 8.504(e). (3) Receipt of the letter does not constitute leave to file an amicus curiae brief on the merits under rule 8.520(f).”)
42See same, subdivision “b”.
43See same, subdivision “c”.