If you or your loved one suffered a California criminal conviction, you may want to appeal the decision. A successful appeal could reverse the conviction, bring about a new trial, and provide a renewed chance at freedom.
But the window for appeal doesn’t stay open for long. The clock starts ticking from the moment the judge pronounces sentence. California imposes very strict deadlines and timeframes in which a defendant seeking appeal must act.
To explain this timeline, our California criminal appeals attorneys1 will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Before we can delve into a conversation about the timeframes and deadlines relevant to appealing a California criminal conviction, we need to present a brief overview of California’s appellate system.
Defendants who were treated unfairly by California’s judicial process can try to remedy the injustice by filing an appeal.2 An appeal is a request for a higher court (that is, the appellate court) to review a decision of a lower court (that is, the trial court).
An appeal is not a new trial, which means that the appellate court does not evaluate any new evidence. Instead, the appellate court reviews the records (paper transcripts) from the trial court to determine if there were any legal mistakes that substantially affected the rights of either party.
The “appellant” is the party filing the appeal, which is typically the defendant. The party opposing the appeal is the “respondent”. These parties (and their attorneys) are the only people eligible to file an appeal. Third parties such as friends and family cannot appeal on behalf of another person.
For more information about the types of legal mistakes that are appropriate for appellate review, please see our article entitled Grounds on Which to Appeal a Criminal Conviction in California.
California misdemeanor appeals are filed in the “Appellate Division of the Superior Court”.3 Absent very rare circumstances, the deadline to file a Notice of Appeal for a misdemeanor appeal is 30 days from the judgment or order that you are appealing. Late applications will not be accepted.4
You will probably want the Appellate Division of the Superior Court to order a copy of the trial court record so that it has the most information possible upon which is can render its decision. The trial record consists of
- a court reporter’s transcript,
- an electronic recording of the proceedings (where applicable), and/or
- a statement on appeal (that is, a summary of the proceedings which you prepare that must be approved by the trial court judge who conducted those proceedings).5
If you choose to request these records…and choose to file a Notice Regarding Record of Oral Proceedings to do so…you must file this Notice
- within 20 days of filing your Notice of Appeal, or
- within 10 days after the Court decides whether to appoint an attorney for you (that is, if you claim you are unable to afford a private attorney).6
And if you opt to provide the Court with a statement on appeal (described above), you must serve and file a Proposed Statement on Appeal with the trial court within 20 days after you file your Notice Regarding Record of Oral Proceedings.7
The prosecution then has 10 days to correct or “amend” the statement and serve and file its revised statement with the trial court. The trial judge then reviews both copies and corrects them so that the statement accurately reflects the proceedings. The court then sends you and the prosecutor a copy for review, and this process continues until both parties and the court agree on the statement.
Once the trial judge “certifies” the statement, the trial court clerk sends it to the Appellate Division.8
Once the record is complete, the Appellate Division will send you a notice telling you the timeframe in which to file your opening brief. The appellant’s opening brief is your opportunity to explain (in writing) why you believe the alleged legal errors resulted in prejudice to your case.
The Appellate Division will tell you the deadline by which you must file this brief, although it is typically 40 days after the record is filed.9 The failure to submit your brief on time could result in a dismissal of your appeal.10
And on that note, it is very important to understand that all of the rules relating to a California criminal appeal require strict compliance. This is why it is critical to seek legal representation from an attorney who specializes in California appellate law.
As California appellate attorney John Murray explains,11 “The laws that pertain to California appeals are very different than those that pertain to trial proceedings. Simple mistakes, ignorance of these specific rules, or a delay in following them can severely jeopardize your case.”
Within 30 days after you file and serve your brief, the respondent may…but is not required to…file a respondent’s brief. If the respondent files a respondent’s brief, you have 20 days after that brief is filed to file a reply brief.12 This, too, is optional.
Once all briefs have been filed…or the time for doing so has elapsed…the court will notify you of the date for your oral argument, unless you choose to waive this argument and let your brief speak for itself.
After both sides have presented their oral arguments…or the date arguments were scheduled has passed in the event either or both parties waived their arguments…the court has 90 days to rule on your appeal.13 The misdemeanor appeal process generally takes at least six months and typically even more.
For more information about Notices of Appeal, briefs, oral argument, and a variety of other procedures that are applicable to both misdemeanor and felony appeals, please review our article on the California Appellate Process.
California felony appeals are generally filed in the California Court of Appeal.14 If, however, your original case was a federal crime, you would file your felony 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.
The California Court of Appeal is divided into six judicial districts that service the entire state. You must file your appeal in the district that has jurisdiction over the county in which your trial took place.
You must file your felony Notice of Appeal within 60 days of the judgment or order that you are appealing. And…as is the case with misdemeanor appeals…late appeals will not be filed.15
Felony appeals involve the same steps as misdemeanor appeals (that is, notice, briefs, oral argument, etc.).16 Generally speaking, felony appeals take about a year from the time the Notice of Appeal is filed until the Court of Appeal renders its decision. This timeframe may be longer or shorter depending on the complexity of the case, on the number of briefs, the length of the transcripts, etc.
Once the Court of Appeal announces its decision, either party has an opportunity to apply to the Supreme Court of California for review. This application must be submitted within 10 days after the Court of Appeal files its opinion.17 The Supreme Court does not automatically accept every appeal and, in fact, is quite discriminating in deciding which cases to review.18
To be quite honest, the chances of overturning a California conviction on appeal aren’t great; however, it’s a fight definitely worth fighting. Having a California appeals lawyer who (1) not only knows how to research the issues to identify the most promising legal errors, but (2) also knows how to present those issues in accordance with California appellate laws and in a truly convincing way, is essential to increase those chances.
Call us for help…
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.
1Our 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.
2California Penal Code 1237 PC — Appeal by defendant. (“An appeal may be taken by the defendant: (a) From a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5. 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.”)
See also Penal Code 1466, subdivision (2), endnote 3, below.
3California Penal Code 1466 — An appeal may be taken from a judgment or order, in an infraction or misdemeanor case, to the appellate division of the superior court of the county in which the court from which the appeal is taken is located, in the following cases: (1) By the people: (A) From an order recusing the district attorney or city attorney pursuant to Section 1424. (B) From an order or judgment dismissing or otherwise terminating all or any portion of the action, including such an order or judgment, entered after a verdict or finding of guilty or a verdict or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy. (C) From sustaining a demurrer to any portion of the complaint or pleading. (D) From an order granting a new trial. (E) From an order arresting judgment. (F) From any order made after judgment affecting the substantial rights of the people. (G) From the imposition of an unlawful sentence, whether or not the court suspends the execution of sentence. As used in this subparagraph, “unlawful sentence” means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court that strikes or otherwise modifies the effect of an enhancement or prior conviction. A defendant shall have the right to counsel in the people’s appeal of an unlawful sentence under the same circumstances that he or she would have a right to counsel under subdivision (a) of Section 1238. (H) Nothing in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition that is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation. (2) By the defendant: (A) From a final judgment of conviction. A sentence, an order granting probation, a conviction in a case in which before final judgment the defendant is committed for insanity or is given an indeterminate commitment as a mentally disordered sex offender, or the conviction of a defendant committed for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment or an order granting probation the court may review any order denying a motion for a new trial. (B) From any order made after judgment affecting his or her substantial rights.”)
4California Rules of Court Title 8, Division 2, Chapter 3, Article 1, Rule 8.853, subdivision (b) — Time to appeal. (“(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.”)
6California Rules of Court, Division 2, Chapter 3, Article 2, Rule 8.864 — Record of oral proceedings.
7California Rules of Court, Title 8, Chapter 3, Article 2, Rule 8.869.
8California Courts Website – Information on Appeal Procedures for Misdemeanors, page 6.
9California Rules of Court, Division 1, Chapter 3, Article 3, Rule 8.360. Briefs by parties and amici curiae.
11California appellate 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.
12See California Rules of Court, Division 1, Chapter 3, Article 3, Rule 8.360, subdivision (c), endnote 9, above.
13California Courts Website – Information on Appeal Procedures for Misdemeanors, page 8.
14California Penal Code 1235, subdivision (b) — Questions of law alone; appeal by either party; application of title. (“(a) Either party to a felony case may appeal on questions of law alone, as prescribed in this title and in rules adopted by the Judicial Council. The provisions of this title apply only to such appeals. (b) An appeal from the judgment or appealable order in a felony case is to the court of appeal for the district in which the court from which the appeal is taken is located.”)
15California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.308 — Time to appeal (a) Normal time Except as provided in (b) or as otherwise provided by law, a notice of appeal [for a California felony 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 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 (a) Emergency extensions of time If made necessary by the occurrence or danger of an earthquake, fire, or other public emergency, or by the destruction of or danger to a building housing a reviewing court, the Chair of the Judicial Council, notwithstanding any other rule in this title, may: (1) Extend by no more than 14 additional days the time to do any act required or permitted under these rules; or (2) Authorize specified courts to extend by no more than 30 additional days the time to do any act required or permitted under these rules. (b) Applicability of order (1) An order under (a) must specify whether it applies throughout the state, only to specified courts, or only to courts or attorneys in specified geographic areas, or applies in some other manner. (2) An order of the Chair of the Judicial Council under (a)(2) must specify the length of the authorized extension. (c) Additional extensions If made necessary by the nature or extent of the public emergency, the Chair of the Judicial Council may extend or renew an order issued under (a) for an additional period of: (1) No more than 14 days for an order under (a)(1); or (2) No more than 30 days for an order under (a)(2).”)
16See generally California Rules of Court Title 8.
17California Rules of Court, Division 1, Chapter 9, Rule 8.500 — Petition for review. 18See same, subdivision (b).