35+ Years Criminal Defense Experience in California


California Criminal Appellate Lawyer Explains the Common Grounds for Criminal Appeals

Are You Thinking About Appealing Your Criminal Conviction in California?

A criminal conviction in California can change your life completely. Upon sentencing, you may be required to serve years in jail or state prison and pay expensive fines that you likely cannot afford. However, the fact that you were found guilty in trial court does not mean you have lost all of your rights. You still have the right to an attorney, and the right to file an appeal in an attempt to overturn your conviction.

With the guidance of a criminal appeals attorney at Wallin & Klarich, you may be able to overturn your conviction and get your life back. Read below for more information on criminal appeals or simply pick up the phone and call (877) 466-5245 for free, immediate advice from an expert California criminal appeal lawyer.

Why Hire Wallin & Klarich?

logosThe success of our criminal appeals firm has helped us achieve the highest of merits, including a 5 out of 5 AV rating on Lawyers.com, a 10 out of 10 rating on AVVO.com, and an A+ rating from the Better Business Bureau.

For over 30 years, the California criminal appellate lawyers at Wallin & Klarich have obtained the reversal of many of our clients’ convictions by appealing their cases. Here are just a few testimonials provided by some of our previous clients:

“My brother was convicted of second degree murder in Los Angeles County. He was sentenced to 16 years to life in state prison. I hired Stephen Klarich from the law firm of Wallin and Klarich to work on his appeal. Our family was very worried and fearful he would spend the rest of his life in prison. The appeal was granted and his entire sentence was reversed. My family is grateful for Wallin and Klarich and all their hard work. It took over a year, but we finally won and my brother has his life back.”

C. C

“On behalf of myself and family, I would like to extend my gratitude, appreciation and thanks to Wallin & Klarich and its staff, for the hard work and diligence in obtaining a positive outcome to my appeal.”


“Prior to retaining the services of Wallin & Klarich, I was convicted of statutory rape, which subjected me to automatic deportation. I retained the services of Wallin & Klarich to appeal my conviction in order to avoid deportation. The attorneys of Wallin & Klarich moved aggressively to present my case to the District Attorney and Judge. Wallin & Klarich successfully drafted and argued a Writ of Coram Nobis and Writ of Habeas Corpus, which resulted in dismissal of all charges against me. Due to Wallin & Klarich’s superb legal knowledge in my particular case, the District Attorney will not re-file any charges against me. Thus, there is no conviction on my record and INS cannot initiate deportation proceedings against me. I am grateful to Wallin & Klarich for their advice and guidance. I would recommend them highly to anyone facing a similar situation or any other criminal charge.”


Call Wallin & Klarich Today

You can place your trust in us. Our knowledgeable criminal appeals lawyers are committed to defending your rights and your freedom. Call us today for immediate help on your criminal appeal.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation.

What are the Common Grounds for a Criminal Appeal in California? Penal Code 1237

California criminal law appeals bear little resemblance to a California criminal law trial. In a trial, it’s all about whether the evidence is strong enough to convince the jury (or judge if you had a judge trial) of your guilt beyond a reasonable doubt. In an appeal, the appellate court is concerned with whether the legal “process” used was fair and legal. If you haven’t already, take some time to browse through the information our appellate lawyers have provided about California appellate court procedures.

An appellate court will not reweigh the evidence on appeal. What this means is that the appeals court will not second-guess the jury’s decision to believe that a witness was telling the truth – no matter how badly the witness seemed to be lying. What the appellate court is looking for is legal errors or misconduct that made the criminal trial “process” unfair to the defense. Errors can include errors by the trial judge, errors or misconduct by the prosecutor or your criminal defense lawyer, or misconduct by the jury.

A. Insufficiency of Evidence

One area that is often cited by California criminal appellate lawyers is that the evidence is insufficient to support the jury’s verdict. Okay. We know. You’re scratching your head at this point and saying to yourself, “Hold on, I thought you said that an appellate court won’t reweigh the evidence on appeal – they only deal with legal errors. What gives?”

Well, this requires drawing a distinction that, in our experience, many criminal defense lawyers don’t fully comprehend. What we’re talking about here IS a legal error. Legally insufficient evidence means that, when the entire record is reviewed in the light most favorable to the judgment, giving every reasonable inference in support thereof, there is no hypothesis whatsoever that would support an inference that the accused is guilty of the crime charged.

One way to understand this fine legal distinction is to look at two examples.

What are the common grounds for criminal appeals in California?

Example One: A defendant is charged with murdering Mr. Smith. Mr. Smith (yes the SAME Mr. Smith) testifies at the defendant’s trial that the defendant punched him in the stomach and hit him in the head with a baseball bat, and that he was in the hospital for a week. The jury finds the defendant guilty of murdering Mr. Smith.

In this example, the “facts” of the case aren’t in dispute. Neither is the law. Murder requires, among other things, that the defendant actually kill the victim. Mr. Smith, by virtue of the fact he testified at trial, was clearly still alive. Taking the facts in a light most favorable to the DA, Mr. Smith is still alive and, as such, there is legally insufficient evidence to support the jury’s verdict of guilty on the murder charge.

Example Two: A defendant is charged with robbing a man on the street. The victim did not see the attacker, but a group of onlookers did. The group consisted of a group of highly upstanding citizens with excellent eyesight, and one less than upstanding citizen who was drunk at the time, who had been convicted of perjury twice in the past, and who was nearsighted and was not wearing his glasses. The “upstanding” citizens testify the police arrested the wrong man. The “less than upstanding citizen” says the defendant robbed the victim. The jury rejects the “upstanding” citizens’ testimony and convicts the defendant of robbery.

Here, the facts were in dispute. The “upstanding” people supported the defense and the drunken man supported the DA. It was up to the jury to decide who was telling the truth and who was not. The jury accepted the testimony of the drunken man as credible beyond a reasonable doubt, and an appellate court will not question the jury’s finding on this point, even though such a finding would be mind-boggling to say the least.

While these might be extreme examples, and, hopefully, no responsible DA would have filed EITHER of these charges, it does illustrate what is meant by legally insufficient evidence. If the jury could have accepted a witness’ testimony as credible and found that all of the requirements or “elements” of the crime were true, the evidence will be viewed as legally sufficient.

B. Prosecutorial Misconduct

Your criminal defense attorney’s job is to represent your legal interests. This is contrary to the job of a criminal prosecutor, like a DA or city attorney, whose job is to represent the People of the State of California. They are allowed to aggressively prosecute their cases; however, they must always keep in mind that they represent all of the People, including, oddly enough, the accused, who, after all, is one of the “People of the State of California.” As such, prosecutors are obligated not simply to convict at all costs, but to seek justice in every case. When prosecutors lose sight of this, they can cross the line and commit prosecutorial misconduct. If you think that the prosecutor committed prosecutorial misconduct in your case or your loved one’s case, speak to one of Wallin & Klarich’s criminal appellate lawyers today. Some examples of misconduct include:

  • Referencing Evidence that is Inadmissible. For example, a judge rules that a defendant’s confession was illegally obtained because the police failed to give the defendant his rights under Miranda v. Arizona. The prosecutor elicits a statement from a police officer that the defendant confessed.


  • Commenting on Items that Were Not Admitted into Evidence.


  • Intimidating Defense Witnesses. Courts have ruled that prosecutor’s act of intimidating a defense witness violates a defendant’s right to compulsory process for procuring witnesses for his or her defense.


  • Expressing a Personal Opinion about a Witness’ Credibility or About Your Guilt is Misconduct.


  • Illegally “Vouching” for a Witness (e.g., arguing to the jury: “I’ve known Officer Jones for 10 years and he’s an honest cop.”)


  • Improperly Commenting on a Defendant’s Decision to Invoke His or Her Miranda rights or Asking the Defendant Why He or She Invoked the Rights. The U.S. Supreme Court has ruled this is misconduct. (Miranda consists of more than just invoking your right to counsel, right)


  • Improperly Commenting on the Fact that the Defendant Chose Not to Testify at Trial. This is called Griffin error.


  • Withholding “Exculpatory” Evidence (also called Brady Evidence). The DA is required to turn over, to the defense, all evidence in their possession, or in the police officer’s possession, that tends to show the Defendant is not guilty of the crime or that the prosecution’s witnesses are not credible.


  • Withholding “Impeachment” Evidence (also called Giglio Evidence). The DA is required to turn over, to the defense, evidence that can be used to impeach their witnesses, such as, by way of example, evidence of prior felony convictions of witnesses.


  • Commenting on the Fact that the Defendant Invoked His or Her Right to the Assistance of Counsel at Trial is Strictly Forbidden. Thus, a prosecutor cannot insult a criminal defense lawyer, or imply to the jury that the defendant hired a lawyer to appear in court because the defendant knows he or she is guilty, or imply that there is something improper about a criminal defense lawyer’s questioning of a victim’s credibility.


  • Arguing in a manner that Appeals to the Passions or Prejudices of the Jury. While a DA is permitted to argue the People’s case forcefully, the DA must not make an appeal to the sympathies of the jury, e.g., telling the jury to vote to convict because they should feel sorry for the victim. While it’s natural to feel sorry for someone who has been hurt, feeling sorry for someone does not mean that the Defendant is guilty.


  • Misrepresenting the Law to the Jury is Misconduct.


  • Improperly Dismissing Jurors Just to Make Sure Members of a Certain Gender/Racial Group Aren’t on the Jury (Called Batson/Wheeler Error). For example, the Defendant is Hispanic, and the DA systematically excuses all Hispanic jurors where it’s clear the DA is doing this not because of a “race neutral” reason, but simply because the DA believes Hispanics will be too sympathetic to the Defendant.


  • Improperly Questioning the Defendant. For example, some courts have ruled that asking a defendant if another witness is lying is misconduct because it forces a defendant to call another person a liar, thereby inflaming the passions of the jury.


C. Juror Misconduct

When a jury is sworn in, they swear an oath to follow the law and obey the judge’s instructions. We hope that jurors will do precisely that, but that is not always the case. Sometimes, jurors are shown to violate their oath and/or the judge’s instructions to them. When this happens, this is said to be juror misconduct, and, if prejudice to the defense can be shown, it can result in a conviction being overturned by your California criminal appellate attorney. Some examples of juror misconduct include:

  • Speaking to Other People About the Case (including a Juror’s Spouse, Religious Advisor, or Therapist) – Other Than Fellow Jurors in the Jury Deliberation Room During a Jury Deliberation Session.


  • Speaking to Other Jurors about the Case – Other Than Fellow Jurors in the Jury Deliberation Room During a Jury Deliberation Session.



  • A Juror Considering Evidence from “Outside Sources” – That is, Evidence that was Not Introduced at Trial.



  • A Juror Conducting an Unauthorized Experiment, or Visiting a Crime Scene on their Own to Investigate the Case.


  • A Juror who Conducts Unauthorized Research about the Facts or the Law Involved. Examples of this include consulting a common dictionary, law dictionary, or doing research on the Internet.


  • Jurors who Decide a Case by Lot or by Compromise. Examples of this include deciding a case by a coin flip, or by agreeing, for example, “If you change your vote to guilty on count 1, I’ll change my vote to not guilty on count 2.” A criminal defendant is entitled to the independent vote of all 12 jurors and such “wheeling and dealing” violates that principle.


D. Judicial Error

This type of error can take various forms and usually involves an erroneous decision or improper action by the trial judge. Some examples of this include:

Judge Make an Erroneous Decision
Did the Trial Judge Make an Erroneous Decision?


  • Refusal to Exclude Improper Prosecution Evidence.


  • Improper Jury Instructions. This area is probably one of the best areas for a California criminal appeal lawyer to find error, as this case our California criminal appeals lawyer at Wallin & Klarich won recently plainly shows. This is because a trial judge has a “sua sponte duty” (that is the judge has this duty to do it him or herself and this duty cannot be put off on the defendant’s criminal defense lawyer) to properly instruct the jury on the law as it applies in your case. This means that, if the judge fails to instruct the jury properly, the judge has committed legal error – even if your criminal defense lawyer failed to notice or object to the judge’s mistake.


  • Showing bias in favor of the prosecution, or prosecution witnesses, and/or against the defense or defense witnesses.



E. Ineffective Assistance of Counsel (IAC for Short).

If your criminal defense lawyer was ineffective, this may be grounds for obtaining a reversal of your conviction on appeal. In order to understand this concept, it’s important to understand what appellate courts will consider “ineffective.” To be ineffective, in the legal sense, your criminal defense lawyer had to engage in conduct, or fail to engage in conduct, that no reasonable California criminal defense lawyer would have done or failed to do. Courts have ruled that there is a wide array of valid tactical choices a lawyer can make in defending a case, and if the lawyer makes a valid tactical choice, the court will not second-guess the lawyer.

So, for example, if the prosecutor attempts to have harmful inadmissible evidence admitted, and the lawyer fails to object, the failure to object might very well be ineffective. However, if the lawyer’s failure to object was because the lawyer was afraid that, if he or she objected, the prosecutor would seek to have much more harmful evidence admitted, and the more harmful evidence IS properly admissible, this would be considered a reasonable tactical decision and thus not ineffective, since trials are about winning the war, not winning a battle.

Another example is a defense lawyer asking the jury to return a guilty verdict. Yes, we’ve seen it. Honest. While that might seem an open and shut case, in the very unique case we saw, it was not ineffective. The defendant in that case was charged with several very serious felony crimes, and one count of a misdemeanor. The evidence showed that the defendant was clearly guilty of the misdemeanor offense and the defense lawyer asked the jury to find the defendant guilty on that count. The defense lawyer was hoping that, by asking the jury to find the defendant guilty of the lesser crime, the lawyer would be seen as more credible by the jury, who might thus consider finding the defendant not guilty of the more serious felony crimes.

In many cases the evidence of ineffective assistance of counsel is strong and there are few, if any, “tactical” arguments that could be advanced in response. Some examples of cases where it is likely that a criminal conviction would be overturned include:

  • Failure to Investigate the Case Where, Had the Lawyer Investigated, the Lawyer Would Have Found a Key Defense Witness.


  • Failure to Make a Critical Motion that was Supported by the Facts and the Law, such as a Motion to Suppress Evidence where the Evidence Showed that the Police Illegally Stopped the Defendant.


  • Failure to Call a Key Defense Witness to Testify at Trial.


  • Failure to Subpoena Documents that Would Have Been Key to the Defense.


  • Failure to Properly Advise a Defendant of the Consequences of a Guilty Plea. For example, failing to tell the Defendant that his or her plea of guilty will clearly bring about mandatory deportation under federal immigration law.


  • Failure to Communicate Settlement Offers or Plea Bargain Offers to the Defendant.


  • Misadvising the Defendant as to the Law Applicable to the Defendant’s Case. For example, telling the defendant that he or she has a valid legal defense to a criminal charge, where the defendant has no such defense, which causes the defendant to reject a good plea bargain and go to trial.


  • Encouraging the Defendant to Plead Guilty to a Charge Not Supported by Any Evidence.


F. Plain Error or Harmless Error?

Once error has been shown, it must be determined whether the error is “plain error” or whether it is subject to what is called the “harmless error” analysis.

Plain Error Rule

Some errors may be so severe that they require the conviction to be reversed.

The “plain error” rule applies to errors that are so severe that they require the conviction to be reversed no matter how strong the evidence against the accused was.

The U.S. Supreme Court has ruled that the following errors will result in an automatic reversal of a criminal conviction:

  1. Totally depriving a defendant of legal counsel;
  2. Lack of an impartial trial judge;
  3. Unlawful exclusion of grand jurors on the basis of race;
  4. Denial of the right to self-representation at trial;
  5. Denial of the right to a public trial; and
  6. An erroneous reasonable doubt instruction to the jury.

If any of these have happened to you, your conviction will automatically be reversed. The appellate court must conclusively presume that you were harmed by the error.

Harmless Error Analysis

If your case does not fall within the “plain error” rule, the appellate court will do a “harmless error” analysis, which varies depending upon the type of error being claimed. So, how does this work?

There’s an old saying among appellate court judges, that being: “A defendant is entitled to a fair trial, not a perfect trial.” What this means is that, just because there was error or misconduct, does not usually mean that your conviction will automatically be reversed. In most cases, it must be shown that you were harmed in some way by the error or misconduct, and “harm” typically means that, had the error or misconduct not have occurred, the result would have been better for the defense. The nature of the error or misconduct will dictate who has the burden of proof. This is why it is called the “harmless error rule”. Of course the more serious the error, or, if there are a number of errors, the stronger your argument for overturning your conviction. This is why you need an experienced California criminal appeals lawyer to assist you in bringing your appeal to the court.

If the error alleged is an error in the application of California state law (for example, the judge admits improper hearsay evidence over your criminal defense lawyer’s objection), the California Supreme Court has ruled that your conviction cannot be reversed unless your California criminal appellate lawyer can show that it is probable that, without the error, you would have fared better at trial. That is, your California criminal appeals lawyer has the burden of convincing the appellate court that you would have gotten a better result had error not happened at all.

If the error constitutes a violation of your rights under the U.S. Constitution (denial of your right to cross examine a witness, or a prosecutor’s repeated comment on a defendant’s failure to testify at trial, for example), the U.S. Supreme Court has ruled that the prosecution must demonstrate, beyond a reasonable doubt, that the error did not contribute to the jury’s verdict. That is, for errors of this type, the prosecutor must convince the appellate court, beyond a reasonable doubt, that the error did not in any way contribute to you being found guilty. If the prosecutor cannot meet this burden of proof, your conviction will be reversed.

Finally, if the error you complain of is that your lawyer was ineffective, the U.S. Supreme Court has ruled that you must show that your lawyer’s performance was “deficient,” such that the lawyer’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and that the performance was so deficient that it denied you of a fair trial.

Speak to Wallin & Klarich Today

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The criminal appeals lawyers at Wallin & Klarich have been successfully helping clients overturn their criminal convictions for over 30 years.

As you can see, when you have been improperly convicted of a criminal offense, you need a lawyer that knows the California criminal appeals process. You need a Wallin & Klarich criminal appellate lawyer who can find all of the errors and misconduct that occurred during your criminal trial. You need an experienced appellate lawyer who can present your case to the appellate court so the court will see that those errors hurt your case.

Speak to us now at (877) 4-NO-JAIL (877-466-5245).

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