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Criminal Appeals Process in California – Penal Code 1237

How to Appeal a Criminal Case in California?

For over 30 years, our team of attorneys have helped individuals obtain reversals of their criminal convictions through the appeals process. 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 the Notice of Appeal

The first step in appealing your California felony, misdemeanor, or infraction criminal conviction is to file a “Notice of Appeal” in the TRIAL COURT (generally at the courthouse where you were sentenced but each county is different). You must NEVER file your Notice of Appeal with the Appellate Court. Clicking on the links for your type of case (felony, misdemeanor, or infraction) will take you to the official court notice of appeal form that is appropriate for your kind of case.

Your Notice of Appeal must be filed on or before the SIXTIETH (60th) day after you were sentenced if your case is a felony. Your Notice of Appeal must be filed on or before the THIRTIETH (30th) day after you were sentenced if your case is a misdemeanor or infraction. Don’t file your Notice of Appeal late, or the Appellate Court will reject your case without even considering the merits of it.

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:

a. You plead guilty, no contest to a felony charge, or admitted a felony probation violation; and

b. Your appeal is based upon an argument that your plea of guilty or no contest or admission that you violated probation was not voluntary, or was not valid in some way.

Some examples of this: The judge failed to advise you of your constitutional rights as required by the U.S. Supreme Court and California criminal law; or your criminal defense lawyer did not tell you about the consequences of the plea, like mandatory deportation, or the amount of time in custody you were facing.

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. That’s not to say there’s nothing you can do. The proper procedure in this instance is to file a petition for a writ of mandamus in the Court of Appeal. If the Court of Appeal grants your petition, it will order the trial court to reverse its denial of your application and grant you the Certificate of Probable Cause, thus allowing you to appeal your case. Confusing? As they say, we don’t write the laws, we just try to follow them.

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. There’s another remedy available to you – it’s called a Petition for a Writ of Habeas Corpus, and we’ll discuss it in another section. Of course, if the DA failed to ask a critical question, given the Fifth Amendment’s Double Jeopardy rule, which provides you cannot be tried twice for the same crime, the DA has no recourse at this point in the case. They must accept the record as it is and try to convince the Appellate Court that they still proved their case. If they fail to do that, your conviction will be overturned and you cannot be retried.

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.

The “reporter’s transcript” is pretty much what it sounds like. When you were in court, you might have noticed a court reporter typing furiously away as people were speaking in court (again, assuming there was a court reporter present). The reporter was making a word-for-word record of what everyone was saying throughout the case. When a case is appealed, it is the reporter’s job to prepare a word-for-word typewritten transcript of what everyone said.

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?

It gets a little tricky in misdemeanor and infraction appeals, and you are going to want an experienced California criminal law appeal attorney to handle this for you – trust us. If you don’t follow the Appellate Court’s procedures properly – and file the proper documentation in a timely manner – the Appellate Court will either presume you abandoned your appeal and will dismiss your appeal without considering the merits of your case; or, when it gets to your case, it will not have all of the paperwork it needs to properly consider your case, and, since you are the appealing party, and thus it’s your burden to make sure you properly request all of the proper paperwork, it’s very likely that your appeal will be dismissed.

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.”

In our experience, unless there was no court reporter and no electronic recording made, both a “settled statement” and a “stipulated statement” should be avoided at all costs.

A “settled statement” and a “stipulated statement” are simply written summaries of what was said by the parties and witnesses in court.

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.”

Since no person’s memory is perfect, it’s best to go with a word-for-word transcript, or an electronic recording of what was said – assuming you have that option at this point. If there is a way to avoid a “stipulated statement” or “settled statement,” an experienced California criminal appeals attorney will find a way to do it.

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 (by the way, it’s not the “Court of Appeals” it’s the “Court of Appeal” and many lawyers even make the mistake of calling it the “Court of Appeals”), the California Attorney General (note the Attorney General represents the prosecution in a California felony crime appeal – the DA is no longer involved), 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. So, for example, if you were charged with a felony crime in Orange County, Riverside County, or San Bernardino County, your case will go to the Fourth Appellate District. If you were charged with a felony crime in Los Angeles or Ventura Counties, your case will go to the Second Appellate District. 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 (who generally represents the prosecution on misdemeanor and infraction appeals, although, sometimes, it’s a City Prosecutor’s Office and not the District Attorney’s Office) and to your California criminal appeals attorney (if you have one).

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, and the same for Orange County, Riverside County, San Bernardino County, Ventura County, and the like.

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 sentenced 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. Note that some clients get upset when they see that the California criminal law appeal attorney has laid out damaging evidence and testimony that the DA introduced. Don’t get upset – this is required by Appellate Court rules, which require the appeals attorney to summarize the evidence “in the light most favorable” to the prosecution. This is not to say that your attorney is forbidden from discussing the defense’s case, or pointing out inconsistencies in prosecution witnesses’ testimony. It’s just that the attorney must include the “bad stuff” too.

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. After each of these points, the lawyer will direct the Appellate Court to prior reported appellate cases, statutes, law review articles, or other authority – called precedent – that the California criminal law appeal attorney believes best supports the Appellant’s case. Once the brief is written, it must be copied and bound in a certain way. It must also have a cover that not only contains the legally required information about the case, but that is the correct color that the Appellate Court requires. The correct amount 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 – unless the Appellant has indicated to the lawyer that he or she does not want a copy of the brief.

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. We say usually and not always for a reason. The California criminal law appeal attorneys at Wallin & Klarich have had cases where the prosecution has conceded that the arguments contained in the appeal brief were correct and the sentence was wrong or the conviction should be reversed. This is extremely rare, but it does happen.

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. Only the lawyers address the Court. Generally, only lawyers are permitted to argue in the Court of Appeal, whereas lawyers and non-lawyers may argue in the Appellate Division. Note though, that non-lawyers may only argue their OWN case, and not someone else’s case.

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. After the Appellant’s lawyer argues, the prosecution lawyer will argue, and, after he or she has concluded (notice a trend here), your California criminal law appeal attorney will have the final chance to address the three judges. The arguments are timed and, as such, those arguing must be careful to budget their time carefully so as to make all the points they wanted to make.

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. Sometimes all three judges won’t agree. Two of them will vote one way, and the third will vote another way. When this happens, there will be two different decisions – one called the majority and the other called the dissent. This is rare but it does happen. 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.

Review by the United States Supreme Court

After the California Supreme Court has either rejected the case, or accepted it and entered a decision against you, you have the right to ask the United States Supreme Court to accept your case. Your California criminal law appeal attorney has 90 days to file this request – called a “Petition for a Writ of Certiorari” – with the Supreme Court Clerk’s Office in Washington, D.C. As with the California Supreme Court, the United States Supreme Court has discretion to reject any case filed with it and it does not even have to state why it has rejected the case. United States Supreme Court Rule 10 gives a pretty good indication of the types of cases the Court will likely accept. The Court will not accept any case where the only issue is an issue of the application of state law. The U.S. Supreme Court is a federal court and will only address issues of federal law and the federal constitution.

If the Court grants the Petition for a Writ of Certiorari, the Court will decide the case on the merits. If the case is rejected, the Court will send a notice indicating the Petition has been denied and it will not address your case. The U.S. Supreme Court is the last step in the direct appeals process.

Further Review in Misdemeanor and Infraction Cases

If you disagree with the Appellate Division’s decision, your California criminal law appeal attorney can ask the Appellate Division to transfer the case to the Court of Appeal so that they can take up the case. This is called a Petition for Transfer. If the Appellate Division denies your Petition for Transfer, your lawyer may petition the Court of Appeal directly to accept the case. The Court of Appeal has the discretion to either accept the transfer or reject it. If the Court of Appeal rejects the transfer, it will not take up the case. If the transfer is accepted, it will review the case and decide it on the merits.

The California Supreme Court

Many clients are shocked to learn that California Rules of Court, rule 8.500(a)(1) specifically provides that no party may file an appeal to the California Supreme Court from a decision of the Appellate Division UNLESS the Petition for Transfer discussed immediately above was GRANTED and the case decided the case on the merits. That is, if the Court of Appeal denied your Petition for Transfer, the California Supreme Court has no authority to accept your case. There are ways around it, but it’s not easy. Your California criminal appeals attorney would be required to file a Petition for a Writ of Certiorari in the Court of Appeal, and prove to the Court of Appeal that the Appellate Division acted outside of its jurisdiction. The California Supreme Court has stated: “Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be … annulled on certiorari.” Those who have had their Petition for Transfer denied have been successful taking this route. Also, it’s important to note that, if the Court of Appeal denies your criminal appeals attorney’s Petition for a Writ of Certiorari, such a denial CAN be reviewed by the California Supreme Court. If taking this route is not advised, there is only one other alternative.

The United States Supreme Court

If it is not possible or advisable to bring a Petition for a Writ of Certiorari in the California Court of Appeal, as discussed above, if your case involves a significant federal issue, it is possible to directly appeal your case from the Appellate Division directly to the United States Supreme Court, and, while it may seem odd, it has happened before.

Your California criminal law appeal attorney has 90 days to file this request – called a “Petition for a Writ of Certiorari” (sound familiar?) – with the U.S. Supreme Court Clerk’s Office in Washington, D.C. The United States Supreme Court has discretion to reject any case filed with it and it does not even have to state why it has rejected the case. United States Supreme Court Rule 10 gives a pretty good indication of the types of cases the Court will likely accept, but even if your case fits squarely within the cases described in Rule 10, that is no guarantee the Court will accept your case. Also, the U.S. Supreme Court will not accept a case that involves only the application of a state law. The U.S. Supreme Court is a federal court, and, as such, it only deals with issues of federal law and the federal constitution.

If the Court grants the Petition for a Writ of Certiorari, the Court will decide the case on the merits. If the case is rejected, the Court will send a notice indicating the Petition has been denied and it will not address your case on the merits. Either way, this is the end of the direct appeals process in your misdemeanor or infraction case.

Speak to an Experienced Appeals Attorney at Wallin & Klarich

The procedure for criminal appeals are very complicated and require the guidance of an experienced teams of attorneys experienced in criminal appeals. Our criminal appeals attorneys at Wallin & Klarich have over 30 years of experience helping clients win their appeals, and we are ready to help you as soon as you give us a call. We have offices throughout Southern California in Orange County, Los Angeles, San Bernardino, Riverside, West Covina, Ventura, and San Diego.

Speak to us today. Call (877) 4-NO-JAIL or (877-466-5245).

We will get through this together.

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