Criminal Appeal Lawyer Explains the Common Grounds for Appealing a Conviction

Do You Need an Experienced Criminal Appeal Lawyer?

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 should give up on your case. You should contact an experienced criminal appeal lawyer immediately to discuss your right to appeal your conviction and attempt to get your conviction overturned.

With the guidance of our skilled criminal appeal lawyers at Wallin & Klarich, you may be able to have your criminal conviction overturned and get your life back. Read below for more information on how criminal appeals work or simply pick up the phone and call (877) 466-5245 for free, immediate advice regarding your case from our expert criminal appeal lawyers.

Why Hire Wallin & Klarich?


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

For over 40 years, our knowledgeable criminal appellate lawyers at Wallin & Klarich have been successfully helping clients obtain the reversal of their convictions by appealing their cases. Here are just a few testimonials provided by previous clients who our lawyers helped file an appeal:

“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 & 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 & Klarich and all their hard work. It took over a year, but we finally won and my brother has his life back.”


“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 criminal appeal lawyers at 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 the area of appeals, 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 the Appellate Lawyers at 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.

Contact our offices at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation.

Appealing a Conviction – Penal Code 1237

If you feel an error or mistake was made in convicting you of a crime or in determining your sentence, you have a chance to obtain justice by filing a criminal appeal under California Penal Code Section 1237.

appeal sign
An appeal is a complex process.

A criminal appeal is a legal argument presented to a higher court, such as the California Supreme Court, that mistakes or legal errors were made during the criminal process in lower courts that impacted your ability to receive a fair legal outcome. During the criminal appeals process, a panel of judges will review how your case was handled in lower courts and determine if errors were made. The panel of judges can decide to reverse a lower court’s conviction if it is found that mistakes were made during the criminal process.

Under California law, any person convicted of a felony offense can file an appeal within 60 days from the date of sentencing.For a misdemeanor, the time limit is only 30 days from the date of sentencing. If you are interested in filing an appeal, you should speak to an experienced criminal appeal lawyer immediately. Your skilled appellate lawyer can determine if you have grounds to file an appeal.

What are Common Grounds to Win an Appeal in California? (PC 1237)

In California, criminal appeals bear little resemblance to the criminal trial process. In a criminal trial, the jury (or judge) will have to determine whether the evidence presented in the case is strong enough to convince them of your guilt beyond a reasonable doubt. In a criminal appeal case, the appellate court is concerned with whether the criminal justice process you were exposed to was fair and legal.

An appellate court will not weigh the evidence from your case during an 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.

Trial errors typically are made unintentionally, but they can have a major impact on your case. Some examples of trial errors that could lead to an appeal include:

  • The court excluded important evidence the defense wished to present at trial.
  • Evidence that should have been excluded from trial was allowed.
  • The jury received incorrect or confusing jury instructions.
  • Misconduct by a juror or prosecutorial misconduct.
  • The sentence received was not appropriate for the crime.
  • Your constitutional rights were violated during the criminal process.

Let’s further explore the most common grounds for appealing a conviction in California and how an experienced criminal appeal lawyer may be able to apply them to your case:

Grounds for Appeal: Insufficiency of Evidence

One common way an experienced criminal appeal lawyer may be able to have your conviction reversed is by showing that the evidence presented at trial was insufficient to support the jury’s guilty verdict. You’re probably thinking, “Hold on, I thought you said that an appellate court won’t weigh the evidence on appeal? Doesn’t an appellate court only deal with legal errors?”

crime scene caution tape
Evidence could be a factor in your appeal.

It is important to note that insufficiency of evidence refers to a legal error. This is something that takes an experienced criminal appeal lawyer to truly understand.

In legal terms, 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. So, what does this mean in plain English? The best way to understand insufficiency of evidence is to explore the following two examples:

Example One: You are charged with murdering John Smith. At trial, John Smith (yes, the same John Smith) testifies that you punched him in the stomach and hit him in the head with a baseball bat, putting him in the hospital for a week due to his injuries. The jury finds you guilty of murder.

In this example, the facts of the case aren’t in dispute, and neither is the law. Murder requires, among other things, that the defendant actually killed the victim. John Smith, by virtue of the fact he testified at trial, is clearly still alive. Taking the facts in a light most favorable to the district attorney, John Smith is still alive and, as such, there is legally insufficient evidence to support the jury’s verdict of guilty on the murder charge. A criminal appeal lawyer will likely be able to use these facts to help you get your conviction overturned.

Example Two: You are 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 several highly upstanding citizens with excellent eyesight and one less-than-upstanding citizen who was drunk at the time, had been convicted of perjury twice in the past, and who was nearsighted and not wearing his glasses. The upstanding citizens testified that the police arrested the wrong man. The less-than-upstanding citizen said you robbed the victim. The jury rejects the upstanding citizens’ testimony and convicts you of robbery.

In this example, the facts of the case were in dispute. The upstanding citizens supported the defense and the drunken man supported the prosecution. It was up to the jury to decide who was telling the truth and who was not, and the jury accepted the testimony of the drunken man as credible beyond a reasonable doubt. An appellate court will not question the jury’s finding on this point, even though such a finding would be mind-boggling. Unfortunately, your chances of winning an appeal under these circumstances aren’t good.

While these might be extreme examples, they perfectly illustrate the concept of 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.

Grounds for Appeal: Prosecutorial Misconduct

At a criminal trial, there are two sides: the defense and the prosecution. The defense’s job is to represent your legal interests. The prosecution’s job is to represent the People of the State of California. Prosecutors are allowed to be aggressive while doing their job, but they must always keep in mind that they represent the interests of the People. Sometimes, prosecutors lose sight of this and develop a mentality that they must convict at all costs. In doing so, some cross the line and commit prosecutorial misconduct.

Misconduct covers a wide range of behavior. Some examples of prosecutorial misconduct that our criminal appeal attorneys have uncovered in past cases include:

  • Referencing evidence that is inadmissible – For example, you were placed under arrest but police failed to read you the Miranda Warning. During trial, the prosecutor in your case uses a statement from a police officer that you confessed as evidence. This statement should not be admissible as evidence because you were not read your Miranda rights. If it was used as evidence against you, you could have solid grounds for appeal.
  • Intimidating defense witnesses – Courts have ruled that a prosecutor’s act of intimidating one of the defense’s witnesses 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 – This is considered prosecutorial misconduct because the jury could view this information as fact, and thus, it would have an impact on the jury’s decision.
  • Illegally vouching for a witness – The prosecution cannot express an opinion about any witnesses. For example, saying something like “I’ve known Officer Jones for 10 years, and he’s an honest cop” is considered prosecutorial misconduct.
  • 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 that making comment to a defendant on why he or she is exercising his or her Miranda rights is considered prosecutorial misconduct.
  • Improperly commenting on the fact that the defendant exercised his or her right to assistance at trial – Prosecutors are not allowed to 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 of the crime. Prosecutors cannot imply that there is something improper about a criminal defense lawyer’s questioning of a victim’s credibility.
  • Improperly commenting on the fact that the defendant chose not to testify at trial – A defendant has the right to refuse to testify at trial. Attempting to use a defendant’s decision not to testify against him or her at trial is an act of prosecutorial misconduct known as the “Griffin Error.”
  • Withholding exculpatory evidence – Referred to as the “Brady Rule,” the prosecution withholding evidence from the defense is prosecutorial misconduct. Prosecutors must share with 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 (Giglio Evidence) – Prosecutors are required to turn over to the defense all evidence that can be used to impeach their witnesses, such as evidence of prior felony convictions. Failing to do so could result in the defendant’s conviction being overturned on appeal.
  • Arguing in a manner that appeals to the passions or prejudices of the jury – Prosecutors can argue aggressively at trial, but they must not make an appeal to the sympathies of the jury. For example, prosecutors cannot tell the jury to vote to convict the defendant 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 – You may have solid grounds for appeal if the prosecution in your case led the jury to believe that certain facts about the laws involved in your case are true when they are not.
  • Improperly dismissing jurors to make sure members of a certain gender or race aren’t on the jury – This type of prosecutorial misconduct is referred to as a “Baston/Wheeler Error.” One example of this is if the prosecution excuses all Hispanic jurors because the defendant is Hispanic, and the prosecution believes Hispanic jurors will be sympathetic to the defendant. If it is clear that the prosecution is not excusing jurors because of a “race neutral” reason, it could be considered prosecutorial misconduct.
  • Improperly questioning the defendant – There are certain restrictions when it comes to questioning the defendant at trial. 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.

If you believe that prosecutors in your case committed prosecutorial misconduct in order to secure a conviction, your criminal appeal lawyers may have solid grounds for appeal. You should seek the help of our experienced Orange County criminal appeal lawyers at Wallin & Klarich immediately.

Grounds for Appeal: Juror Misconduct

When a jury is sworn in, they make an oath to follow the law and obey the judge’s instructions. Unfortunately, it is not always the case that they follow those instructions.

Sometimes, jurors violate their oath or the judge’s instructions to them. When this happens, it is considered “juror misconduct.” If it can be shown that juror misconduct was committed with prejudice to the defense, it can result in your conviction being overturned by your criminal appellate attorney.

Some examples of juror misconduct include:

  • Speaking to other people about the case – Jurors are never allowed to speak to anyone about the case, including spouses, religious advisors and therapists.
  • Speaking to other jurors about the case – Jurors can only discuss the case with fellow jury members in jury deliberation sessions. It could be considered juror misconduct if jury members speak about the case outside of deliberation sessions.
  • A juror refusing to deliberate – All jurors should listen and discuss the case in deliberation sessions, according to jury instructions.
  • A juror considering evidence from outside sources – Jurors are instructed to only consider the evidence introduced at trial. Getting information about the case from outside sources could impact the ability to make a fair and just decision.
  • Withholding information during jury selection (Voir Dire) – Jurors must reveal all pertinent information during the jury selection process. For instance, a juror must tell the prosecution and defense if he or she knows the defendant or alleged victim in some way.
  • A juror conducting an unauthorized experiment or visiting a crime scene on their own to investigate the case – Jurors must only consider the evidence presented at trial.
  • A juror who conducts unauthorized research about the facts or the law – Examples of this include consulting a common dictionary, law dictionary and doing research on the internet.
  • Jurors who decide a case by lot or compromise – Jurors cannot base their decision of whether the defendant is guilty or not guilty by a coin flip or by making an agreement to convict on certain charges with other jury members. A criminal defendant is entitled to the independent vote of all 12 jurors, and wheeling and dealing violates that principle.If you believe your case was impacted by juror misconduct, you should seek the help of an experienced criminal appeal lawyer right away.

Grounds for Appeal: Judicial Error

A judicial error involves an erroneous decision or improper action by the trial judge.

Some examples of judicial errors that could result your conviction being overturned include:

  • Refusal to exclude improper prosecution evidence – This happens when the judge refuses to make evidence inadmissible when it should not be allowed according to California law.
  • Improper jury instructions – This is one of the most common ways for a criminal appeal lawyer to find grounds for appeal. This is because a trial judge has a “sua sponte duty” 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, prosecution witnesses, or against the defense or defense witnesses – If a judge shows any signs of bias toward the prosecution, including simply treating the prosecutor and prosecution witnesses better, it could have an impact on the jury.
  • Improper denial of a motion to suppress evidence for illegal search and seizure – If evidence was obtained through illegal search and seizure, it should not be admissible in court.

Judicial error is one of the most common ways to win your appeal. Speak to our criminal appellate lawyers at Wallin & Klarich today if you believe a judicial error affected your criminal case.

Grounds for Appeal: Ineffective Assistance of Counsel (IAC)

“Ineffective assistance of counsel” essentially means that your criminal defense lawyer was ineffective in defending you.

criminal appeal lawyer sign
Your lawyer may have been ineffective.

However, you cannot simply state that your lawyer was ineffective in order to win an appeal. You have to understand what criminal appellate courts consider “ineffective.”

To be ineffective from a legal prospective, your criminal defense attorney must have engaged in conduct (or failed to engage in conduct) that no reasonable criminal 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. Appellate courts also recognize that trials are about winning the war, not winning a battle. Let’s explore some detailed examples of how defense strategy could be considered valid or ineffective.

Example One: If the prosecutor in your case attempted to have harmful inadmissible evidence admitted and your lawyer failed to object, the failure to object might be enough for the lawyer to be considered “ineffective.” However, if your criminal lawyer failed to object because he or she was afraid that objecting would cause the prosecutor to seek to admit much more harmful evidence that is admissible, it would be considered a reasonable tactical decision, and your lawyer would not be considered ineffective.

Example Two: Your criminal defense lawyer asked the jury to return a guilty verdict. You may be thinking “what lawyer in his right mind would do that?” but it is something we’ve seen happen before. In the unique case, the lawyer was not ineffective in asking for a guilty verdict. The defendant in the case was charged with several serious felony crimes and one count of a misdemeanor offense. The evidence showed that the defendant was clearly guilty of the misdemeanor, and the defense lawyer asked the jury to find the defendant guilty on the misdemeanor 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.

Despite the fact that ineffective assistance of counsel is a complicated area of law for appellate courts, there are some clear reasons that a criminal defense lawyer would be considered ineffective. Those reasons include:

  • Failure to investigate the case where, had the lawyer investigated, he or she 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, and it 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

Ineffective assistance of counsel is a complex legal topic that requires an experienced criminal appeal lawyer to fully understand. If you think ineffective assistance of counsel may have impacted your criminal case, contact our skilled criminal appellate lawyers at Wallin & Klarich today.




Plain Error vs. Harmless Error in a Criminal Appeal Case

It is not enough to show that an error was made in your case to win your appeal. Your criminal appeals lawyer must show that the error had an impact on your case, and the result of the case may have been different had the error not been made.

In making this determination, the appellate court must decide whether the error made in your case is a “plain error” or a “harmless error.”

Plain Error Rule

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:

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

If any of these errors occurred in your case, your criminal conviction will 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 a harmless error analysis work?

There’s an old saying among appellate court judges that “a defendant is entitled to a fair trial, not a perfect trial.” What this means is that just because there was an error or misconduct during the trial, it does not 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. “Harm” in this sense typically means that, had the error or misconduct not occurred, the result would have been better for the defense.

appeals court
The appeals court will rule on errors.

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.” The more serious the error, or if a number of errors were made, the stronger your argument for overturning your conviction will be.

If the error alleged is an error in the application of California state law, the California Supreme Court has ruled that your conviction cannot be reversed unless your criminal appellate lawyer can show that it is probable that you would have received a better result at trial if the error had not occurred. Therefore, your criminal appeal lawyer has the burden of convincing the appellate court that you would have gotten a better result had the error not happened.

If the error constitutes a violation of your Constitutional rights (i.e. denial of your right to cross examine a witness, or a prosecutor’s repeated comment on a defendant’s failure to testify at trial), 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. 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 is that your lawyer was ineffective, the U.S. Supreme Court has ruled that your criminal appeals lawyer must show that your 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.

What Happens If I Win an Appeal in Appellate Court?

If you win your appeal, your case is not over. First of all, the prosecutor will have the opportunity to appeal the appellate court’s decision to a higher court. If your appeal is granted, the case will be remanded (sent back) to the trial court and you may receive a new trial.

However, the prosecution will often wish to avoid a new trial, and thus offer you a plea bargain, which is an agreement that will be much more favorable to you than the sentence you may have received if the original conviction by the trial court would not have been reversed.

If the appellate court ruled that certain evidence or a confession should not have been admitted at trial and it appears that you are unlikely to be convicted without the use of such evidence, the prosecutor may choose to dismiss the charges against you completely. The prosecutor may also decide to drop the charges altogether if key witnesses from the original trial can no longer be found.

How Do I Find a Criminal Appeal Lawyer Near Me?

criminal appeal lawyer
Speak to a skilled criminal appeal lawyer now!

Filing an appeal is a complicated process that requires the experience of the best appellate lawyer you can find. That is why you should not hesitate to contact our criminal appellate lawyers at Wallin & Klarich if you are interested in appealing your conviction.

At Wallin & Klarich, our skilled and knowledgeable criminal appeal lawyers have been successfully representing clients in appeal matters for more than 40 years. We’ve helped thousands of people in their time of legal need, and we can help you now.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, you can find an experienced Wallin & Klarich criminal appeal lawyer available near you no matter where you work or live.

Contact our law firm today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation regarding your case. We will get through this together.

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