How to Successfully Appeal Your Criminal Conviction in California

How to Appeal a Criminal Case in California?

Have you been convicted of a crime in California and believe the verdict was unfair? You have a right to appeal your conviction—but the process can be overwhelming. For over 40 years, our attorneys at Wallin & Klarich have successfully helped thousands of clients reverse their convictions through the California appeals process. We’ll guide you step-by-step through every part of your appeal, so you don’t have to navigate this complicated system alone.

Handling a criminal appeal is very different than handling a criminal charge, and if you are thinking about appealing your criminal conviction in California, you should contact our attorneys to receive proper guidance on how this process works. You do not have to go through this process alone.

The process of California criminal appeals can generally be broken down into four steps:

1. Filing the Notice of Appeal;
2. Obtaining the Record,  Briefing and Arguing;
3. The Court’s Decision; and
4. Further Review

The process is the same generally no matter how minor or serious your crime of conviction was; however, there are some variance between felony procedures, misdemeanor procedures, and infraction procedures, and we’ll point those out to you as best we can along the way.

Step 1: Filing Your Notice of Appeal

Step 1: Filing Your Notice of Appeal

• Felonies: 60-day deadline
• Misdemeanors & Infractions: 30-day deadline
  (Avoid missing deadlines—contact an experienced attorney immediately.)

In a felony case, if it’s required by California Penal Code section 1237.5, you must also file, with the Notice of Appeal, a sworn statement called an application for a “Certificate of Probable Cause.”

Generally, an application for a “Certificate of Probable Cause” must be filled out if you are filing an appeal from a conviction where:

1. You plead guilty, no contest to a felony charge, or admitted a felony probation violation; and
2. Your appeal is based upon an argument that your plea of guilt or no contest or admission that you violated probation was not voluntary or was not valid in some way.

Once you file the Notice of Appeal and an application for a “Certificate of Probable Cause,” the judge who took your plea of guilty or no contest will review the documents carefully and accept or reject your appeal. If the Notice of Appeal and an application for a Certificate of Probable Cause are not filled out completely or correctly, the trial court judge can reject your appeal. That means you will lose your ability to appeal your conviction. There might be ways around it, but it makes things much more difficult. This is why it is critical to have an experienced California criminal appeals lawyer assisting you in filling out the application for a “Certificate of Probable Cause.”

We know what you’re thinking: “What if everything is done perfectly and the trial judge STILL rejects my application for a Certificate of Probable Cause? Can I appeal that?” Technically, the answer is no, you can’t “appeal” the trial judge’s denial of your application for a Certificate of Probable Cause. A Certificate of Probable Cause is a document issued by the judge that gives you the “green light” to go ahead with your appeal.

Step 2: Obtaining the Record, Briefing, and Arguing

After the Notice of Appeal is filed, (and, if required in a felony case, the Certificate of Probable Cause has been approved by the trial court judge); the clerk of the court will order the record of your case to be put together.

Preparing the Record

The record is made up of two parts – the “clerk’s transcript,” and the “reporter’s transcript.” Note that, in some cases, the “reporter’s transcript” might not technically be a “reporter’s transcript” because there was no court reporter present in the court during your trial California criminal trial. What then? We’ll talk about that in a bit.

These two items – the clerk’s transcript and the reporter’s transcript – are the only two items the Appellate Court will consider in your case. Appeals courts do not take new evidence on appeal. This can help your case – such as if the DA failed to ask a critical question that was required to prove a required element of a California crime. It can also hurt your case – such as if your California criminal defense lawyer failed to call a critical alibi witness in your case. If something like this happened to you, don’t despair.

The “clerk’s transcript” is made up of all the relevant papers that were filed with the trial court.

These papers can include, but are not limited to:

1. The list of the offenses you were charged with;
2. Written jury instructions (if applicable);
3. Written arguments submitted by the District Attorney or by your criminal defense attorney (if applicable);
4. Transcript of the preliminary hearing (if applicable); and
5. Written sentencing information.

Again, these are just some examples of what gets filed in some cases. Each case is different.

In a felony case, the court clerk will handle getting the reporter’s transcript prepared for you. There’s always a court reporter present in California felony trials. Not so in misdemeanors and infractions. Sometimes there’s a court reporter. Sometimes there is an electronic recording made. Sometimes there’s neither. What then?

When you file your appeal in a misdemeanor or infraction case, you are going to have to inform the Court whether you want:

• The court reporter to prepare a word-for-word typewritten record of what was said in court (assuming there was a reporter present);
• An electronic recording (or a transcript prepared from same) of what was said in court (assuming such a recording was made);
• A “settled statement”; or
• A “stipulated statement.”

A “stipulated statement” is a statement prepared by the prosecution and the defense together and agreed to by both. If the parties agree, there is no need for a contested hearing on the accuracy of the statement and that statement will be used by the Appellate Court. What if they can’t agree? Well, then they’ll have to resort to using a “settled statement.”

A “settled statement” involves a contested hearing in court with the defense, prosecution, and the trial judge. The defense must initially prepare a proposed settled statement and provide a copy to the prosecutor and the trial judge. The judge will then set a hearing date to discuss the statement, and, in the meantime, the prosecutor might file an objection to your statement, especially if he or she feels that your statement is inaccurate or incomplete. At the hearing, the judge will make the final decision and will “settle the statement,” that is, he or she will approve the statement as final. Thereafter, it is the defense’s burden to prepare copies of the statement and file them and serve them on the parties to the appeal. This becomes the “settled statement on appeal.”

Once the record is complete, what happens next depends upon whether the case being appealed is a felony, misdemeanor, or infraction.

If your case is a felony, once the record on your felony criminal case has been prepared and certified by the clerk of the superior court as correct and complete, copies are sent to the clerk of the California Court of Appeal, the California Attorney General, and your California criminal law appeal attorney. California felony crime appeals are directed to the California Court of Appeal for the appellate district wherein the case was originally filed. The felony appeals process is laid out in California Penal Code section 1237 and Chapter Three, Title Eight of the California Rules of Court.

If your case is a misdemeanor or an infraction appeal, the record is forwarded to the clerk of the Appellate Division of the Superior Court, and to District Attorney.

California misdemeanor and infraction crime appeals are not directed to the Court of Appeal, but to the Appellate Division of the California Superior Court for the County wherein the case was originally filed. Each County in California has a Superior Court , and each Superior Court has an Appellate Division. So, for example, if you were convicted of speeding or misdemeanor battery in the Los Angeles Superior Court, your initial appeal will go to the Appellate Division of the Los Angeles Superior Court

The misdemeanor appeals process is laid out in California Penal Code section 1466 and Chapter Three of Title Eight of the California Rules of Court. The infraction appeals process is laid out in California Penal Code section 1466 and Chapter Five of Title Eight of the California Rules of Court.

Briefing

This part of the process, generally, is the same for felony, misdemeanor, and infraction appeals.

Once your California criminal law appeal attorney receives the record from the Superior Court clerk, the attorney must first review it to make sure it’s complete and that the clerk hasn’t left anything out. If something has been omitted, the attorney must notify the clerk of the Court of Appeal (or Appellate Division) and the clerk of the Superior Court so that the omitted record can be certified and included in the appeal.

Appellant’s Opening Brief

Once the record is complete, the criminal law appeal attorney must then get to work reviewing the record to determine what issues he or she can raise to get your case dismissed, get your conviction reversed, get you a new trial, or get your sentence reduced or modified. Once the attorney has completed reviewing the case, the attorney must prepare what is called an “Appellant’s Opening Brief.” It’s an “Appellant’s” brief because you are not referred to as a “Defendant” in the Court of Appeal (or Appellate Division), but as an “Appellant.” The brief must be filed in the time required or your appeal might be dismissed. Your California criminal law appeal attorney can ask for extensions of time in order to prepare the brief, and the Appellate Court will frequently grant them if there is good cause.

This brief summarizes what happened procedurally in the case. It also summarizes what happened “factually” in the case

After summarizing the facts of the case and the procedural aspects of the case, the California criminal law appeal attorney must present legal arguments that support his or her client’s case. These arguments are generally laid out point-by-point. Once the brief is written, it must be copied and bound in a certain way. The correct number of copies of the brief must be sent to the Appellate Court, the Attorney General (or District Attorney or City Prosecutor, as the case may be), and the Appellant.

The Prosecution’s Response

After the Appellant’s Opening Brief has been filed, the prosecution gets to respond by filing a brief called “Respondent’s Brief.” The prosecution is called the “Respondent” in the Appellate Courts. The Respondent’s brief, like your brief, will summarize the factual and procedural history, and will also usually present arguments as to why your California criminal law appeal attorney’s arguments are wrong and why your conviction was proper and why your sentence was just fine.

Appellant’s Reply Brief

If you had a trial, and there was a prosecutor present, you might recall the closing arguments. The DA argued first, your criminal defense lawyer argued second, and then, finally, the DA got to argue again. This is because, in the law, the party with the burden of proof (at trial the DA) gets the last word. The same happens on appeal. Since you are the Appellant, you have the burden of proving that you are entitled to some relief in the Appellate Courts. Accordingly, your California criminal law appeal attorney gets the last word, and can, if required, file a Reply Brief. This brief is filed in response to arguments made in the Respondent’s Brief and can point out mistakes the prosecution made in their brief. Filing this brief is optional and is not required by the Appellate Courts. That is, your case will not be dismissed if your lawyer does not file a Reply Brief.

Arguing Your Case

After all the briefs are filed, the Appellate Court will ask the parties if they wish to orally argue the case. If oral argument is requested, the Court will set a date. In a felony case, a lawyer from the Attorney General’s Office (called a “Deputy Attorney General”) will attend. If your case is a misdemeanor or an infraction, a lawyer from the District Attorney’s Office or City Prosecutor’s Office (called a Deputy District Attorney, or Deputy City Attorney) will attend. In either case, your California criminal appeals attorney will attend.

If the client is in custody, the Court will not order prison or jail officials to transport the Appellant to the Court personally. If the client is not in custody, the client is welcome to attend the arguments, but he or she will not be asked to address the Court.

Three judges will be assigned to your case. The Appellant has the burden of proof and, as such, the Appellant’s lawyer will get the first chance to address the three appellate court judges.

Step 3: The Court’s Decision

The Court will not decide the case on the spot, but the three judges will adjourn and discuss the case amongst themselves in private at a later date. To win, one party must receive the votes of at least two of the three judges. The Court’s decision will be in writing and will explain the reasons why the Court decided as it did. If the decision is a favorable one for you, the case will either be dismissed or sent back to the trial court for further proceedings (for example, a new trial, a new sentencing hearing, etc.). If the decision is not favorable, the Court will affirm your conviction, meaning that everything will stay as it was. If your conviction was affirmed, and you wish to continue to fight your case, where you go from there depends upon whether your case was a felony, misdemeanor, or infraction, and we’ll explain the different procedures next.

Step 4: Further Review in Felony Cases

If your felony criminal conviction is affirmed, although it is a significant blow, all is not lost. There are still further steps you might take.

Rehearing

If the decision of the Court of Appeal is not a favorable one for you, your California criminal law appeal attorney can ask the Court of Appeal to reconsider. This is called filing a “Petition for Rehearing.” If the Court agrees, it can decide to have the case reargued. Otherwise, your other options are laid out below.

Further Review in the California Supreme Court

If you believe that the Court of Appeal’s ruling was in error, your California criminal law appeal attorney can ask the California Supreme Court to review your case. By rule, this Petition must be filed within ten days of the date that the Court of Appeal’s decision became final, which usually occurs thirty days after the Court’s decision is filed, so, in essence, you generally have forty (40) days to file such a request, but not always. Consult with your California criminal appeals attorney to be certain of the deadline that applies in your case because, sometimes, a Court of Appeal’s ruling is final on the date it’s filed.

A request for the California Supreme Court to review the case is called a “Petition for Review.” In the Court of Appeal once the Notice of Appeal was filed (and if necessary the Certificate of Probable Cause was approved), they heard and decided the case. That’s because the Court of Appeal is required to review every appeal that is properly filed with it. Not so the California Supreme Court. The California Supreme Court has the discretion to either accept or reject a case and it doesn’t even have to say why the case was accepted or rejected, although California Rules of Court, rule 8.500(b) gives some ideas of cases the Court is looking for. When a Petition for Review is filed, your California criminal law appeal attorney is asking the Court to accept the case. If the Court accepts the case, it will decide it on the merits. If the Court does not accept the case, it will send a notice indicating that the Petition has been denied. If your case is denied by the California Supreme Court, either on the merits or otherwise, you have the option of seeking review in the U.S. Supreme Court.

Speak to an Experienced Appeals Attorney at Wallin & Klarich

With over 40 years of success in California criminal appeals, Wallin & Klarich attorneys have helped countless individuals overturn wrongful convictions. We’re here to fight for you. We have offices throughout Southern California in Orange County, Los Angeles, San Bernardino, Riverside, and San Diego.

Speak to us today. Call (714) 868-8525.