The most common grounds for appeal of a criminal conviction are improper admission or exclusion of evidence, insufficient evidence, ineffective assistance of counsel, prosecutorial misconduct, jury misconduct and/or abuse of discretion by the judge. Generally, the appellant must show not just that one of these errors occurred, but also that there is a reasonable probability that it affected the outcome of the case.
In this article, our California criminal appellate attorneys1 explain the types of legal issues that are appropriate for appellate review in California by addressing the following:
- 1. Overview of California’s Appellate Process
- 2. To Win an Appeal, You Must Show That “Legal Error” Occurred at the Trial Court
- 3. Specific Grounds on Which to Appeal
- 4. Possible Remedies if You Win Your Appeal
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. Overview of California’s Appellate Process
When a defendant is the victim of an unfair trial or an unjustly harsh sentence, he/she may file a California criminal appeal.
An appeal is a request for a higher court (that is, an appellate court) to review a decision of a lower court (that is, the Superior Court, frequently referred to as the trial court). An appeal is not a new trial. The appellate court does not:
- retry the case,
- examine new evidence, or
- accept testimony from witnesses.
The only job of the appellate court is to review the proceedings that took place in the trial court to determine if there were any legal errors that substantially affected the rights of either party. The appellate court performs this job by reviewing:
- the record of the Superior Court (that is, a court reporter’s transcript which is a transcription of all oral proceedings),
- the clerk’s transcript (that is, a compilation of all exhibits, documents, motions, etc. that evidenced any written communication), and
- the arguments presented by the attorneys (these arguments are presented both in writings – known as “briefs” – and verbally during oral argument).
If you are filing a misdemeanor appeal in California, you file your appeal with the “Appellate Division of the Superior Court”. If you are filing a California felony appeal, you file it with the California Court of Appeal.2
For a more detailed explanation of the specific steps involved in California’s appeal process, please review our article on California’s Appeal Process.
2. To Win an Appeal, You Must Show That “Legal Error” Occurred at the Trial Court
It bears repeating that California appellate courts are only concerned with legal errors. If the trial court committed a “legal” error, it means that someone involved with the original case acted in such a way that didn’t comply with California law.
Examples of legal issues include (but are not limited to):
- whether the judge improperly admitted or excluded evidence,
- whether the judge improperly instructed the jury,
- whether the prosecutor acted unethically or the defense attorney was guilty of ineffective assistance of counsel, and
- whether the judge abused his/her discretion when sentencing the defendant.
Issues such as
- the credibility of a witness,
- the value of a certain piece of evidence, and
- whether the defendant is innocent or guilty
are considered questions of fact and are exclusively within the jurisdiction of the trial court. Because the jurors and the trial judge were in a position to evaluate any relevant questions of fact, the appellate court gives deference to those issues and assumes they were decided correctly.
2.1. To win on appeal, you must show that the errors were “prejudicial”
But determining that there was a legal error is not enough by itself to overturn a conviction or sentence. The appellate court must additionally 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.
If the appealing party – that is, the “appellant” – can’t prove that the legal error was prejudicial, the appellate court will not modify the trial court’s rulings.
As California appellate lawyer John Murray3 explains:
“When the Court of Appeal conducts its review, it does so assuming that the lower court proceedings complied with the law. It is therefore up to the appellant to convince the Court that (1) the police, prosecution, or judge made a legal error during the pre-trial investigation, trial, or sentencing hearing, and (2) that the error was prejudicial to his/her case.”
3. Specific Grounds on Which to Appeal
There are a variety of grounds on which to appeal a California conviction. The chances of overturning a California conviction on appeal depend on the strength of your argument. Some of the strongest arguments that establish these grounds include (but are by no means limited to):
3.1. False arrest
If the officers didn’t have the proper authority to arrest you, your case may be overturned on appeal. This means that if, for example, the officer
- lacked probable cause when he/she detained or arrested you,
- arrested you in the absence of an arrest warrant and without complying with the appropriate arrest warrant exceptions, or
- violated California search and seizure laws in the course of arresting you.
then your false arrest acts as a legal defense and could be an appropriate ground on which to base a California appeal.
3.2. Improper admission or exclusion of evidence
As part of every jury trial, before the jury is called in to hear the evidence, the judge holds a special hearing with just the lawyers. At this hearing, the judge decides what pieces of evidence the attorneys are allowed – or not allowed – to present to the jury. We call these “motion in limine” hearings or “Penal Code 402” hearings.
As you might imagine, the prosecutor wants to bring in incriminating and prejudicial evidence that will make the jury want to convict. Furthermore, the prosecutor often wants to stop the defense from being able to present “exculpatory” evidence that tends to support the accused.
The defense lawyer, on the other hand, wants to present all the exculpatory evidence he or she can – and to limit the incriminating stuff the prosecutor is permitted to present.
The judge listens to all the arguments and then decides what comes in and what stays out.
The point is this: Judges can get it wrong!
They sometimes make mistakes – big mistakes – in ruling on the admission and exclusion of evidence. When they do, this can be a fruitful ground on which to appeal the criminal conviction.
3.3. Insufficient evidence
Sometimes the juries, too, get it wrong.
The jury makes a decision based on emotion or prejudice rather than the facts and the law. Jurors convict a defendant even when there isn’t compelling evidence to support a guilty verdict.
Fortunately, California criminal law requires that the prosecution fulfill its burden of proving guilt beyond a reasonable doubt. “Beyond a reasonable doubt” is the highest legal standard of proof. It essentially means that the evidence is so strong that there is no logical explanation other than the fact that the defendant committed the crime(s) charged.4
When the prosecution fails to prove its case beyond a reasonable doubt, but the jury nevertheless convicts, we can appeal the criminal conviction on the grounds of insufficient evidence.
3.4. Ineffective assistance of counsel
Sometimes it’s your attorney who committed a legal error, not the judge or jury. When you can prove that your trial lawyer was incompetent – that is, that his/her performance was so flawed that it deprived you of your Sixth Amendment right to a fair trial – you may be entitled to a new trial based on a claim of ineffective assistance of counsel.
The Court of Appeal will presume that your attorney’s actions fell within the wide range of acceptable professional assistance and that any action or inaction can be justified as a matter of trial strategy.5
However, ineffective assistance of counsel is a proper ground on which to appeal a criminal conviction if you can prove that
- the attorney’s conduct was deficient because his/her representation fell below an objective standard of reasonableness under prevailing professional norms, AND
- the attorney’s failure to act competently resulted in actual prejudice.6
3.5. Prosecutorial misconduct
If the prosecutor engaged in a dishonest act or attempted to persuade the jury or the court by using improper methods, and those acts were so prejudicial that the judge couldn’t correct the situation by either
- instructing the jury to disregard the improper act, and/or
- striking the evidence or prosecutor’s statement.
you may be entitled to a new trial on the basis of prosecutorial misconduct.7 Some examples of prosecutorial misconduct include (but are not limited to):
- commenting on inadmissible evidence,8
- purposely misstating the law or evidence,9 and
- appealing to the jury’s passions or prejudices.10
But remember: it’s not enough that the prosecutor act unethically. His/her actions must also cause prejudice. And when they do, this ground on which to appeal a conviction will almost always lead to a favorable ruling.
3.6. Jury misconduct
When jurors engage in inappropriate or even illegal behavior, that compromises a defendant’s right to a fair trial. This type of behavior – referred to as juror misconduct or jury misconduct – provides yet another ground on which to appeal a conviction.
Some examples of jury misconduct include (but are not limited to):
- refusing to deliberate,
- conducting a factual investigation that goes beyond the admitted evidence, and
- purposely concealing relevant information that could affect an impartial deliberation.11
But (as is the case with the other grounds mentioned above) you will not prevail in your appeal by a mere showing that the jury engaged in misconduct. You must also prove that that misconduct most likely affected the outcome of your jury trial.
Yet unlike the other grounds above, jury misconduct creates a rebuttable presumption of prejudice. This means that the burden is on the party opposing the appeal (known as the “respondent”) to prove that the misconduct did not cause prejudice.12
In other words, defense appeals based on jury misconduct are easier to win!
3.7. Sentencing errors
Sentencing errors often provide a successful ground on which to appeal the sentence imposed by the judge.
Before a judge can punish a defendant, he/she must comply with the rules that govern sentencing hearings. Sometimes this means that the judge must clearly state his/her reason for choosing a particular sentence. Other times it means that a judge may only impose a sentence on one charge, even when a defendant is convicted of multiple charges. And under some circumstances, it means that a judge must order multiple sentences to be served simultaneously instead of consecutively (which makes for a shorter sentence).
When a judge ignores these sentencing rules, he/she imposes an “illegal sentence.” If we can convince the Appellate Court that the judge sentenced you illegally, the Court will remand the case to the trial court and order the trial judge to sentence you appropriately.
This can cause you to be “resentenced” to significantly less time.
4. Possible Remedies if You Win Your Appeal
Let’s say the appellate court agrees with you that “prejudicial legal error” occurred at the trial court level. So you win the appeal! But what happens now?
The type of remedy that the Court of Appeal will issue depends on the grounds on which we appeal your California conviction. Typically, there are three remedies that a successful appeal may generate.
The first is a reversal. If, for example, we can show that there was insufficient evidence to support your conviction, the Court may reverse your conviction and dismiss the charges against you. In other words, you walk!
The second remedy is a new trial. If, for example, we succeed in our claim of ineffective assistance of counsel, the Court will grant you a new trial, where you will be represented by a different attorney (which might even be us, if we stay on the case through the new trial). The chances of winning at the new trial will almost always be better.
The third option is a remand. When the Court of Appeal “remands” your case, it means that it “sends it back” to the trial court with instructions on how to cure the error. This is typically the case when you are the victim of an illegal sentence.
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 the 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.
- Our 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.
- California 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.”)
- California 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.
- California Jury Instructions – CALCRIM 220 – Presumption of Innocence-Reasonable Doubt-Burden of Proof. (“Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”)
- People v. Lucas (1995) 12 Cal.4th 415, 436-437. (“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a [California] claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412 [276 Cal.Rptr. 731, 802 P.2d 221]), and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694, 104 S.Ct. 2052] ( Strickland ).)”)
- People v. Lewis (1990) 50 Cal.3d 262, 288. (“To establish entitlement to relief for [a California claim of] ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings. People v. Pope (1979) 23 Cal.3d 412, 425; People v. Fosselman (1983) 33 Cal.3d 572, 584; see also Strickland v. Washington, supra at 687-696.
- People v. Dontanville (1970) 10 Cal.App.3d 783, 795. (“The burden of proving prejudicial misconduct rests with the defendant (People v. Beivelman, 70 Cal.2d 60, 75 [73 Cal.Rptr. 521, 447 P.2d 913]; People v. Asta, 251 Cal.App.2d 64, 86-87 [59 Cal.Rptr. 206]), who here has made no showing of bad faith on the part of the prosecutor. Furthermore, even where misconduct is shown, it does not provide grounds for reversal of judgment where the jury has been admonished to disregard the offending statements, unless they are of such a character as to make their effects incurable by admonition.”)
- People v. Aragon (1957) 154 Cal.App.2d 646. Prosecutor referred to the defendant failing a lie detector test.
- People v. Bell (1989) 49 Cal.3d 502. The prosecutor committed misconduct by misstating the facts and the law in arguing that defendant’s eyewitness reliability expert was not competent to offer an opinion because he had not read all of the police report, where the expert had already been qualified by the court.
- People v. Stansbury (1993) 4 Cal.4th 1017. Improper for prosecutor to ask jury to view crime from eyes of murder victim, as appeal to sympathy for victim is out of place during an objective determination of guilt.
- California Penal Code 1181 PC — California motion for a new trial.
California Penal Code 1122 PC — Instructions to jury before opening address and at each adjournment of court. (“(a) After the jury has been sworn and before the people’s opening address, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. The instructions shall include, among other matters, admonitions that the jurors shall not converse among themselves, or with anyone else, on any subject connected with the trial; that they shall not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they shall not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to, and within 90 days of, discharge, they shall not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they shall promptly report to the court any incident within their knowledge involving an attempt by any person to improperly influence any member of the jury. (b) The jury shall also, at each adjournment of the court before the submission of the cause to the jury, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them.”)See also In re Hitchings (1993) 6 Cal.4th 97.
See also People v. Engelman (2002) 28 Cal.4th 436.
- In re Hitchings, supra at 119. See also People v. Pierce, supra, 24 Cal.3d at p. 207; People v. Honeycutt (1977) 20 Cal.3d 150, 156 “It is well settled that a presumption of prejudice arises from any juror misconduct.” This presumption of prejudice ” ‘may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party [resulting from the misconduct]… .'” People v. Miranda (1987) 44 Cal.3d 57, 117, quoting Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417; Wiley v. Southern Pacific Transportation Co., supra at 189.