February 6, 2020 By Paul Wallin


It always seems to be the big question when the law changes: How does it affect people that were arrested, convicted, or sentenced before the change? How do you appeal? Can you appeal? Are there special requirements that go along with the appeal?

These can be a very tricky questions to answer and why you need to consult a skilled and experienced California criminal defense attorney to help guide you and your loved ones that may be impacted by the changes in the law.

The recent California Court of Appeal case of People v. Ellis makes this point clear. In the Ellis case, Mr. Ellis represented himself at the trial court level (a bad idea to begin with). He plead guilty to evading a police officer, possession of methamphetamine for sale, and he admitted having a prior “strike” crime and admitted a “gang” enhancement.

He received a sentence of 8 years and 4 months in state prison. This included a 5 year “mandatory” (more on the “mandatory” aspect below) enhancement for the prior “strike” crime, commonly known as a “nickel prior.”

After he entered his plea and was sentenced, the defendant filed a notice of appeal but did not file with it a request for a “certificate of probable cause.” The general rule (there are exceptions to the rule) is that, when a defendant pleads guilty or no contest, the matter is deemed settled and in most cases there is no basis for an appeal.

Therefore, when you plead guilty and you want to appeal your sentence, you must file, with your notice of appeal, a written request to the trial court, signed under penalty of perjury, outlining the legal basis for your appeal and requesting the trial court issue a “certificate of probable cause” for the appeal.

Only if the trial court agrees to issue a certificate of probable cause does the appellate court have legal authority to hear your appeal (note there is a way to legally compel a trial court to issue a certificate of probable cause and that is by filing a petition for writ of mandate in the Court of Appeal – so all is not hopeless).


The case languished for about a year and the appellate court appointed Mr. Eillis a lawyer to represent him in the appeal. In the meantime, the California Legislature passed SB 1393, which now gave trial courts the authority to “strike” a “nickel prior” and thus not impose the mandatory extra 5 years of state prison time.

Mr. Ellis’ lawyer argued that his case should be sent back to the trial court so that Mr. Ellis could ask the trial judge to strike the “nickel prior” and with it the added 5 year sentence. 

The prosecution argued that, since no certificate of probable cause was obtained, that the appellate court was without the legal authority to even hear the appeal and, therefore, the appeal should be dismissed. 

The Court of Appeal ruled that failure to obtain a certificate of probable cause does not bar an appeal that is based upon a change in the law that happened after the notice of appeal was filed and before the appeal was decided. The Court thus ordered the defendant’s case to be returned to the trial court so that the court could decide whether to “strike” the “nickel prior” in Mr. Ellis’ case. 

As you can see, the law in this area is complex, and, while things worked out for Mr. Ellis, it doesn’t always go so smoothly. This is why consulting an experienced and knowledgeable California criminal appeals attorney is critical.


At Wallin & Klarich, we have over 40 years of experience in helping clients defend their freedom when accused of criminal activity. We will work tirelessly and use all of our legal skills and knowledge to help you achieve the best possible outcome in your case. Let our skilled attorneys and legal professionals help you today.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance, and Victorville, there is an experienced and skilled Wallin & Klarich juvenile defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no-obligation phone consultation. We will get through this together.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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