When California’s criminal justice system gets things wrong, we’re here to fight back to make it right.
We’re a law firm of former prosecutors and former police. Each year, we take a limited number of cases where a person was convicted and needs to file a felony appeal. We go to bat for the client, seeking to get the conviction and the sentence overturned.
In this article, our California criminal appellate attorneys1 explain the felony appeals process by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
First things first. When a defendant feels that he/she has been wronged by the criminal justice system, he/she has a Constitutional right to file an appeal. An “appeal” is a request for a higher court (that is, an appellate court) to examine what happened in a lower court (that is, the superior court, oftentimes referred to as the trial court) to see if mistakes occurred in the lower court.
An appeal is not a new trial. This means that the appellate court does not
- consider new evidence,
- retry the case, or
- accept testimony from witnesses.
Instead, the appellate court 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 appealing…which is typically the defendant…is referred to as the “appellant”. The party opposing the appeal…which is usually the prosecution…is referred to as the “respondent”. These are the only two parties that may file for an appeal. This means that friends or family members cannot appeal on behalf of another…unless they are an attorney acting on behalf of the defendant.
Appeals may fail based on the “harmless error” doctrine
It’s not enough for the appellate court to determine that there was a legal error. In order for the court to overturn or reverse the error, it must also conclude that the error “prejudiced” one of the parties. “Prejudice” is shown when there is a reasonable probability that the legal error made a difference in the outcome of the case. Let’s consider an example:
Example: Tom is on trial for murder. Over the defense lawyer’s objection, the judge allows the prosecutor to present some “hearsay” evidence from a witness who says he “heard through the grapevine” that Tom was at the murder scene right after the murder. The prosecutor also presents evidence of Tom’s confession to the police and a video surveillance tape of Tom committing the murder. Tom is convicted and he appeals the conviction.
The appellate court is likely to find that the judge made a mistake and should not have permitted the hearsay testimony. But the appeals court will also likely rule that this was “harmless error”…harmless because Tom almost certainly would have been convicted by the other proper evidence even if the jury never heard from the hearsay witness. So even thought the trial judge made a really bad ruling, Tom probably wouldn’t succeed in getting his felony conviction reversed on appeal.
You can see, therefore, that a felony appeals lawyer has two jobs. First is to convince the appellate court that mistakes happened at the trial court. Second is to make the case that the client may have been acquitted had these errors not occurred-i.e., that the error was not harmless.
It’s also worth noting that in criminal cases, while the defendant can always appeal a guilty verdict, the prosecution may not appeal an acquittal. So if the jury finds the defendant “not guilty,” it’s game over for the state.
For more information about the types of legal errors and issues upon which an appeal may be based, please review our article on Grounds on Which to Appeal a Criminal Conviction in California.
With respect to California appellate law, a “felony” case is any case where a felony was initially charged, regardless of the ultimate outcome of the case. This means that even if you were charged with a felony and a misdemeanor…but were only convicted of the misdemeanor…you would still file the appeal in accordance with California felony appeal laws.2
Similarly, if the prosecutor charged you with a felony wobbler…even if the judge or prosecutor ultimately declared the wobbler to be a misdemeanor…California law still recognizes this as a felony case for appellate purposes. A “wobbler” is a case that the prosecutor may file as either a misdemeanor or a felony, depending on
- the facts of the case, and
- your criminal history.
Felony appeals in California are filed in the California Court of Appeal as opposed to the “Appellate Division of the Superior Court” which is where you file misdemeanor appeals.3 The Court of Appeal has six judicial districts to service the state. You file your appeal in the district that has jurisdiction over the county in which your contested case took place.
The Court of Appeal does not decide questions of fact, but rather only considers questions of law.
Questions of fact, such as guilt or innocence, witness credibility, etc. are issues that are exclusively within the trial court’s control. Likewise, the appellate court in a felony appeal does not determine what the defendant’s sentence “should have been”. This, too, is a decision for the judge / jury in the trial court.
Felony appeals in California are therefore limited to legal issues. The only question the Court of Appeal asks is “did the case proceed in accordance with California law?”. To answer that question, the Court looks at issues such as
- whether the evidence was properly admitted or excluded,
- whether the judge read the proper jury instructions,
- whether counsel acted unethically or incompetently, and
- whether the judge abused his/her discretion when sentencing the defendant.
If the appellate court believes that the proceedings were lawful, it “affirms” the original conviction and/or sentence. At that point, you may request that a higher court, the California Supreme Court review your felony appeal.
And if 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.
If, however, the appeals court determines that there was a prejudicial legal error, it
- reverses the conviction or sentence (either in whole or in part), or
- “remands” the case (that is, “sends it back”) to the trial court to
a) retry the case,
b) resentence the defendant, or
c) otherwise correct the legal error.
The first step in a felony appeal is to file a Notice of Appeal with the Court of Appeal. Barring some natural disaster or other public emergency, you must file Notice within 60 days of the judgment or order that you are appealing. Late appeals will not be allowed.4 You must be careful to comply with the timeframes and deadlines for filing a California criminal appeal.
After that, a series of rules and regulations must be followed with strict compliance. These rules and regulations cover everything from
- serving notice on the opposing party,
- the color paper on which your written arguments (referred to as “briefs”) must appear,
- the size font in which you must type,
- deadlines as to submissions, and
- what type of documents, exhibits, etc. must be filed.
As California criminal appeals lawyer John Murray5 explains, “If you don’t strictly comply with every rule regarding California felony appeals, your case will get rejected, ‘thrown out of court’, delayed, or worse. This is why it is particularly important to seek representation from an attorney who is well-versed in the intricacies of California’s appellate process. Without proper guidance, your felony appeal will almost certainly fail.”
For more information on the specific procedures involved in the appeal process, please review our article on California’s Appeal Process.
When you file a Notice of Appeal it doesn’t necessarily extend or postpone your criminal sentence. If you were sentenced to county jail or state prison, you may ask the trial court to
If the judge placed you on probation…and ordered you to complete certain terms and conditions…you must ask that he/she postpone your compliance (otherwise known as a “stay” of execution).
If you believe the court unfairly denied either of these requests, you may appeal those issues to the Court of Appeal as well.6
Because a felony appeal is not a new trial, the Court of Appeal must evaluate the merits of your claim by reviewing the records from the lower court. These “records” include
- a clerk’s transcript (that is, the written materials that have been filed or received in connection with the case, such as the accusatory pleading and any amendments, exhibits, any written communications between the judge and jury, and the court minutes), and
- a reporter’s transcript (that is, the court reporter’s transcription of the oral proceedings).7
It bears repeating that the laws regarding felony appeals are much different than those that govern trials. And because of this, it is critical that you retain an attorney who not only thoroughly understands these differences but who knows how to spot and present the legal errors that win felony appeals.
Contact 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.
For information on felony appeals in Nevada, read our article on felony appeals in Nevada.
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 691, subdivision (f) — Words and phrases. (“The following words have in Part 2 (commencing with Section 681) the signification attached to them in this section, unless it is otherwise apparent from the context: (a) The words “competent court” when used with reference to the jurisdiction over any public offense, mean any court the subject matter jurisdiction of which includes the offense so mentioned. (b) The words “jurisdictional territory” when used with reference to a court, mean the city and county, county, city, township, or other limited territory over which the criminal jurisdiction of the court extends, as provided by law, and in case of a superior court mean the county in which the court sits. (c) The words “accusatory pleading” include an indictment, an information, an accusation, and a complaint. (d) The words “prosecuting attorney” include any attorney, whether designated as district attorney, city attorney, city prosecutor, prosecuting attorney, or by any other title, having by law the right or duty to prosecute, on behalf of the people, any charge of a public offense. (e) The word “county” includes county, city and county, and city. (f) “Felony case” means a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony [italics added]. (g) “Misdemeanor or infraction case” means a criminal action in which a misdemeanor or infraction is charged and does not include a criminal action in which a felony is charged in conjunction with a misdemeanor or infraction.”)
See also California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.304, subdivision (a)(2) — Filing the appeal; certificate of probable cause. (“(a) Notice of appeal (1) To appeal from a judgment or an appealable order of the superior court in a felony case [that is, a California felony appeal] -other than a judgment imposing a sentence of death-the defendant or the People must file a notice of appeal in that superior court. To appeal after a plea of guilty or nolo contendere [“no contest”] or after an admission of probation violation, the defendant must also comply with (b). (2) As used in (1), “felony case” means any criminal action in which a felony is charged, regardless of the outcome. A felony is “charged” when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a. A felony case includes an action in which the defendant is charged with: (A) A felony and a misdemeanor or infraction, but is convicted of only the misdemeanor or infraction; (B) A felony, but is convicted of only a lesser offense; or (C) An offense filed as a felony but punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under Penal Code section 17(b)[italics added]. (3) If the defendant appeals, the defendant or the defendant’s attorney must sign the notice of appeal. If the People appeal, the attorney for the People must sign the notice. (4) The notice of appeal [for a California felony appeal] must be liberally construed. Except as provided in (b), the notice is sufficient if it identifies the particular judgment or order being appealed. The notice need not specify the court to which the appeal is taken; the appeal will be treated as taken to the Court of Appeal for the district in which the superior court is located. (b) Appeal after plea of guilty or nolo contendere [“no contest”] or after admission of probation violation (1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court-with the notice of appeal required by (a)-the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. (2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate. (3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal “Inoperative,” notify the defendant, and send a copy of the marked notice of appeal to the district appellate project. (4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or (B) Grounds that arose after entry of the plea and do not affect the plea’s validity. (5) If the defendant’s notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1). (c) Notification of the appeal (1) When a notice of appeal is filed, the superior court clerk must promptly mail a notification of the filing to the attorney of record for each party, to any unrepresented defendant, to the reviewing court clerk, to each court reporter, and to any primary reporter or reporting supervisor. If the defendant also files a statement under (b)(1), the clerk must not mail the notification unless the superior court files a certificate under (b)(2). (2) The notification must show the date it was mailed, the number and title of the case, and the dates the notice of appeal and any certificate under (b)(2) were filed. If the information is available, the notification must also include: (A) The name, address, telephone number, and California State Bar number of each attorney of record in the case; (B) The name of the party each attorney represented in the superior court; and (C) The name, address, and telephone number of any unrepresented defendant. (3) The notification to the reviewing court clerk must also include a copy of the notice of appeal, any certificate filed under (b), and the sequential list of reporters made under rule 2.950. (4) A copy of the notice of appeal is sufficient notification under (1) if the required information is on the copy or is added by the superior court clerk. (5) The mailing of a notification under (1) is a sufficient performance of the clerk’s duty despite the discharge, disqualification, suspension, disbarment, or death of the attorney. (6) Failure to comply with any provision of this subdivision does not affect the validity of the notice of appeal.”)
3California 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.”)
See also California 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 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).”)
5California misdemeanor 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.
6California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.312 — Stay of execution and release on appeal (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 [when filing a California felony appeal]; or (2) For bail, to reduce bail, or for release on other conditions. (b) Showing The application 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.”)
7California Rules of Court, Title 8, Division 1, Chapter 3, Article 2, Rule 8.320 — Normal record; exhibits (a) Contents If the defendant appeals from a judgment of conviction, or if the People appeal from an order granting a new trial, the record must contain a clerk’s transcript and a reporter’s transcript, which together constitute the normal record [for a California felony appeal]. (b) Clerk’s transcript The clerk’s transcript must contain: (1) The accusatory pleading and any amendment; (2) Any demurrer or other plea; (3) All court minutes; (4) All jury instructions that any party submitted in writing and the cover page required by rule 2.1055(b)(2) indicating the party requesting each instruction, and any written jury instructions given by the court; (5) Any written communication between the court and the jury or any individual juror; (6) Any verdict; (7) Any written opinion of the court; (8) The judgment or order appealed from and any abstract of judgment or commitment; (9) Any motion for new trial, with supporting and opposing memoranda and attachments; (10) The notice of appeal and any certificate of probable cause filed under rule 8.304(b); (11) Any transcript of a sound or sound-and-video recording furnished to the jury or tendered to the court under rule 2.1040; (12) Any application for additional record and any order on the application; (13) And, if the appellant is the defendant: (A) Any written defense motion denied in whole or in part, with supporting and opposing memoranda and attachments; (B) If related to a motion under (A), any search warrant and return and the reporter’s transcript of any preliminary examination or grand jury hearing; (C) Any document admitted in evidence to prove a prior juvenile adjudication, criminal conviction, or prison term. If a record was closed to public inspection in the trial court because it is required to be kept confidential by law, it must remain closed to public inspection in the reviewing court unless that court orders otherwise; (D) The probation officer’s report; and (E) Any court-ordered diagnostic or psychological report required under Penal Code section 1203.03(b) or 1369. (c) Reporter’s transcript The reporter’s transcript must contain: (1) The oral proceedings on the entry of any plea other than a not guilty plea; (2) The oral proceedings on any motion in limine; (3) The oral proceedings at trial, but excluding the voir dire examination of jurors and any opening statement; (4) All instructions given orally; (5) Any oral communication between the court and the jury or any individual juror; (6) Any oral opinion of the court; (7) The oral proceedings on any motion for new trial; (8) The oral proceedings at sentencing, granting or denying of probation, or other dispositional hearing; (9) And, if the appellant is the defendant: (A) The oral proceedings on any defense motion denied in whole or in part except motions for disqualification of a judge and motions under Penal Code section 995; (B) The closing arguments; and (C) Any comment on the evidence by the court to the jury. (d) Limited normal record in certain appeals If the People appeal from a judgment on a demurrer to the accusatory pleading, or if the defendant or the People appeal from an appealable order other than a ruling on a motion for new trial, the normal record is composed of a reporter’s transcript of any oral proceedings incident to the judgment or order being appealed and a clerk’s transcript containing: (1) The accusatory pleading and any amendment; (2) Any demurrer or other plea; (3) Any written motion or notice of motion granted or denied by the order appealed from, with supporting and opposing memoranda and attachments; (4) The judgment or order appealed from and any abstract of judgment or commitment; (5) Any court minutes relating to the judgment or order appealed from; and (6) The notice of appeal. (e) Exhibits Exhibits admitted in evidence, refused, or lodged are deemed part of the record, but may be transmitted to the reviewing court only as provided in rule 8.224. (f) Stipulation for partial transcript If counsel for the defendant and the People stipulate in writing before the record is certified that any part of the record is not required for proper determination of the appeal, that part must not be prepared or sent to the reviewing court. (g) Form of record The clerk’s and reporter’s transcripts must comply with rules 8.144, 8.328, and 8.336.”)