Appeals And Writs

California Criminal Appeals and Writs

Criminal defendants who think they have been wrongfully convicted of a crime have options:

Initiate an Appeal by Filing a Notice of Appeal

Initiate an Appeal by Filing a Notice of Appeal

What is an Appeal? 

An appeal is NOT the same as asking for a new trial, but rather it is a request for a higher court to review the rulings or decisions of a lower court for errors in law or improprieties. The appellant must show a higher court that there was an error in how the trial was conducted. The appellant can only raise issues that are apparent from transcripts and records of the lower court.

You can only appeal if:

The appellate court does not:

The Appellate Court is the Appellate Division of the Superior Court for California misdemeanor appeals and the California Court of Appeal for felony appeals.

Who are the Parties?

The “Appellant” is the party who files the appeal.

The “Respondent” is the person opposing the appeal.

Filing the Appeal

A Notice of Appeal is filed with the appellate section of the trial court (California Superior Court) from which the appeal is taken. No filing fee is required.   The defendant or the defendant’s attorney initiates the appeal by filing a Notice of Appeal. As a general rule, once an appeal is filed and a sentence commenced, the trial court loses jurisdiction over the case.

The Notice of Appeal

There are also important deadlines that apply to appeals. Be sure not to miss the deadline for filing a notice to appeal, a missed deadline will most likely affect your appellate rights. Having a California appeals lawyer is essential.  The attorney will take the necessary measures to calculate the deadline for filing the notice of appeal. For felony cases, the notice of appeal must be signed and filed within 60 days following your trial court judgment.  60 days is not the same as 2 months. It is often best to file the notice of appeal at the earliest opportunity.

Normal Time

After Guilty or Nolo Contendere Plea

Generally, by pleading guilty or nolo contender, or by admitting a probation violation, the defendant implicitly waives issues that could otherwise be raised on appeal and can add complexity to the notice of appeal.   Although complex rules govern what issues may be raised on appeal following such a plea or admission. There are two categories of exceptions to the general rule of waiver, both of which require the filing of a notice of appeal.

1. Noncertificate Grounds. A defendant need not seek a certificate of probable cause if the appeal is base on:

  1. Grounds that arose after the entry of the plea and that no challenge its validity (e.g., sentencing error); and2.
  2. The denial of a motion to suppress evidence under Pen. C Sec. 1538.5.

The notice of appeal must state that it is based on noncertificate grounds; otherwise, the appeal may simply be dismissed.

2. Certificate of Probable Cause. This category requires the defendant to obtain a “certificate of probable cause” from the trial court.  A statement in support of a certificate of probable cause must also be filed along with the notice of appeal; written statement, executed under oath or penalty of perjury, stating appropriate grounds for the appeal. The application for a certificate of probable cause is NOT the equivalent of the notice of appeal. The statement, like the notice of appeal, must be filed within 60 days of the judgment.  Once you file your statement, the Superior court issues a certificate of probable cause or order denying a certificate within 20 calendar days after the statement of grounds for appeal is filed. The following are some issues that are appealable with a certificate of probable cause:

Untimely Filing

When the superior court receives a late notice of appeal, the clerk must mark it “Received [date] but not filed” and notify the party who submitted it that was not filed, because it was late. There are, however, two recognized situations in which a notice of appeal filed more than 60 calendar days after the judgment is considered timely under the doctrine of “constructive filing”:

Attorney Failed to Perform
  1. Superior court's final judgment can be appealed.

    The superior court’s final judgment can be appealed.

    When an incarcerated defendant reasonably relies on the attorney’s promises or representation that the attorney will timely file the notice of appeal, but the attorney fails to do so, the notice may be considered timely.

Constructive Filing
  1. When an incarcerated defendant delivers the notice of appeal to prison authorities within the 60-day period, but the superior court clerk does not receive it until after the period has expired, the notice will be considered timely.

Notification of the Appeal

When a Notice of Appeal is filed, the superior court clerk must promptly send a notification of the filing to the attorney of record for each party, to any unrepresented defendant, to the reviewing court clerk, to each court reporter, and to any primary reporter or reporting supervisor.

Preparing the Record

When there has been a trial on the merits, the superior court clerk ordinarily must begin preparing the clerk’s transcripts and the reporter must start preparing the reporter’s transcripts, immediately after a finding or verdict of guilt is announced.

When the appeal is from a plea of guilty or nolo contendere, or from the admission of a probation violation, preparation must begin immediately after a notice of appeal or certificate of probable cause is filed.

The normal appellate record consists of The clerk’s and reporter’s transcripts are automatically prepared under Cal. Rules of Court, (rules 8.320 to 8.336).

The Clerk’s Transcript:  Consists of various documents filed in the trial court, such as orders of the court, motions and briefs, the clerk’s daily minutes, copies of jury instructions, and the verdict.

Reporter’s Transcript: This is the verbatim record of official trial proceedings.

The appellate lawyer will promptly check the record closely to make sure that all items are designated as part of the “normal record”. If the record is incomplete the appeals lawyer can informally ask the clerk to prepare the missing item, certify it, and transmit it as an augmentation to the record without the need for a court order.  As an alternative to the informal notice, or if the clerk or reporter fails to comply within10 days, counsel may file a “motion for augmentation”.

Bail on Appeal

A convicted defendant must be released on bail pending appeal as long as the defendant establishes by “clear” and convincing evidence” that:

  1. He or she is not likely to flee;
  2. Does not pose a danger to any person or to the community; and
  3. The appeal is not for the purpose of delay and raises a substantial legal question which (if the defendant prevails) is likely to result in reversal.

However, courts rarely exercise their discretion to grant bail on appeal, and challenges to a trial court’s refusal to grant bail are seldom successful. If bail on appeal was denied or set too high in the trial court, counsel may file an application for bail or to reduce bail on appeal in the appellate court. The application is served on both the district attorney and the Attorney General.

The Appellant’s Opening Brief

The appellant’s opening brief is due 40 calendar days after the record has been filed in the reviewing court unless the appeals lawyer makes a request for an extension. The courts of appeal usually grant a first request for a 30-day extension.

The opening brief consists of the following:

“Wende” Brief

When the appointed appellate attorney concludes, after reviewing the record, that there are no issues that even arguable on appeal, the attorney may file a brief that simply summarizes the procedural and factual history of the case and asks the appellate court to review the record independently to determine if, in the court’s judgment, there any arguable issues that counsel overlooked.  People v Wende (1979) 25 C3d 436.

The Respondent’s Brief

The answering brief is also known as the “respondent’s brief on appeal”.  The respondent’s brief must be served and filed within 30 calendar days after the appellant’s opening brief is filed. The respondent’s brief is filed in response to the appellant’s opening brief and its purpose is to justify any of the presumed legal errors that the appellant claims were made.

The Appellant’s Reply Brief

The appellate attorney is not required to file a reply brief, but it is almost always in the client’s best interest to do so. The purpose of the reply brief is to counter arguments made in the respondent’s brief, it also provides an opportunity to point out to the court any significant facts and arguments contained in the opening brief that the respondent could not or did not contest. The appellant’s reply brief must be served and filed within 20 calendar days after the respondent’s brief is filed.

Oral Argument

The court of appeal may not summarily affirm a conviction without affording the opportunity for oral argument. However, some appellate courts routinely send notices to appellate lawyers indicating that the court is prepared to rule without argument. If the attorney requested an oral argument the court will permit up to 30 minutes. The argument itself should not be a restatement of the entire contents of the briefs. The attorney will select one or two points and address them in an interesting and concise manner.

The Result

There is no requirement that a case before the court of appeal be decided within a certain time after submission. In the great majority of cases, opinions are filed within 90 days after the oral argument. The court can resolve an appeal by means of an opinion on the merits or by dismissing the appeal without reaching the merits.

What is a Writ?

A writ is an extraordinary remedy only available when a party has no other adequate remedy at law, such as an appeal. Writs are a procedure for the reviewing court to review a legal issue. Writs are orders from higher courts to lower courts, agencies, or persons. They are requested through a petition filed in the court being asked to issue the writ.  Typical writs include the writ of habeas corpus, writ of prohibition, and writ of mandamus.

Writ of Mandate

A writ of mandate also called a writ of mandamus, is used to compel a court, officer, or agency to perform a duty required by law or to compel a court to assume jurisdiction and exercise its discretion after its refusal to act.

Writs of Mandate and Prohibition

A writ of mandate orders a lower court to perform a duty; a writ of prohibition orders it to refrain from an action that exceeds its authority.

 Writs of Habeas Corpus

Habeas is generally used to challenge the lawfulness of imprisonment, conditions of confinement, or other actual or constructive restraint on personal liberty. The primary grounds for seeking habeas is found in Pen. C Section 1473. It is typically used to challenge the validity of the petitioner’s conviction or sentence when facts supporting the claim are not apparent from the trial record. Habeas is usually unavailable as a substitute for ordinary remedies at law such as direct appeal. It may be used in conjunction with appeal when the appellate attorney wishes to challenge an issue that requires evidentiary support from outside the record.

It can be filed in the superior court, the court of appeal, or the supreme court, but a petition filed in a reviewing court must state the petitioner’s reasons for not filing in the superior court. There is no statutory time limit, however, the passage of time may be deemed procedural default.

Call The Law Office of Shep Zebberman Today

The Law Office of Shep Zebberman is committed to defending your rights and your freedom. If you need help and you are looking to hire an appellate attorney for representation, we invite you to contact us. We can provide a free consultation. We have local offices in Los Angeles County and in Orange County.  Contact our offices at  (855) 770-1836 for a free consultation.