Appeals and Writs

In both felony and misdemeanor cases, whether a DUI, a drug case, a domestic violence conviction, or a case under California’s three strikes law, a defendant has a right to appeal any judgment of the court imposed after trial as a result of a conviction, or any order after judgment that affects the substantial rights of a defendant. A judgment is either the pronouncement of the court of a sentence to state prison or county jail, an order to pay a fine, or an order suspending a sentence but imposing probation. On rare occasions, a defendant may appeal the decision of a court before a final judgment has been pronounced. For example, if a defendant in a misdemeanor case asks a trial court to exclude certain evidence from being admitted at a trial on the grounds that the evidence was obtained by the police in violation of a defendant’s constitutional right to be secure in his or her person, house, papers, or effects and the trial court denies that request, the defendant may appeal that ruling before trial. Prosecutors may also appeal certain pretrial orders, such as the granting of a defendant’s request to exclude evidence on constitutional grounds, the disqualification of the prosecutor or his entire office, the granting of a demurrer to an accusatory pleading (a demurrer is a request by a defendant for a court to dismiss an accusatory pleading because, while the facts may be true, they do not constitute a crime), the dismissal of a case by a court under certain circumstances, the granting of a new trial for a defendant after a guilty verdict is returned by a jury, the reduction of the degree of an offense of which a defendant has been convicted by a jury, and the imposition of an unlawful sentence by the trial court.

Felonies are appealed to the California Court of Appeal for the district in which the trial was held. There are six appellate districts in California: the First District located in San Francisco; the Second District in Los Angeles and Ventura; the Third District in Sacramento; the Fourth District in San Diego, Riverside, and Santa Ana; the Fifth District in Fresno; and the Sixth District in San Jose. After a decision is rendered by a district court of appeal, a defendant is not entitled as a matter of right to appeal the court’s decision to the California Supreme Court, but may request the Supreme Court to review the decision. That is done by the filing of a petition for a writ of review in the California Supreme Court. Misdemeanors are appealed to the appellate department of the superior court where the trial occurred. Each county has its own superior court.

An appeal is started by the timely filing of a notice of appeal with the clerk of the court where the trial was held and the judgment pronounced. The notice of appeal must be filed within 60 days of the date of the judgment or order appealed from in felony cases, and within 30 days in misdemeanor cases. If the notice of appeal is not filed timely, the defendant loses the right to appeal.

The filing of an appeal does not automatically stay the execution of a sentence or an order of probation in either a misdemeanor or felony case. An order staying a sentence or term of probation, such as serving time in the local county jail, must be applied for first in the trial court. If denied, an application for a stay order may then be made in the reviewing court. Such an application is called a petition for a writ of supersedeas.

If a court does not stay the execution of a sentence or a term of probation involving jail time, an appellant may request bail on appeal. In felony appeals, whether to grant bail on appeal is discretionary with the trial court and will only be granted upon a clear and convincing showing that appellant has strong ties to the community, has made all court appearances in the trial court, and is not a danger. In misdemeanor matters, appellant is entitled to bail as a matter of right. In either case, if bail is denied by a trial court, appellant may then ask for bail in the reviewing court.

Appeals are limited to errors of law that occurred at the trial. The reviewing court will not re-evaluate the evidence presented at the trial or the jury’s verdict. Moreover, an appeal is based only on the record of the trial proceedings, called the record on appeal. The record on appeal consists of three items:

1. the reporter’s transcript, which is a verbatim reporting of everything that was said at the trial;
2. the clerk’s transcript, which is a copy of all items contained in the court file such as motions, minutes orders, jury instructions, written rulings by the court, and evidence exhibit lists; and,
3. the exhibits themselves, whether or not admitted into evidence.

The issues raised on appeal are limited to what is contained in the record on appeal and nothing outside of that record on appeal can be raised as an issue in an appeal. The record of the trial proceedings includes a transcript of all witnesses’s testimony, the lawyers’ arguments, the judge’s rulings, instructions, and comments to the jury, and all of the documents filed in the case with the court clerk. An appellant may raise on appeal errors of law made by the trial judge in ruling on requests of either of the parties for rulings, which are called “motions.” The trial judge might also have made errors of law in allowing in or keeping out certain evidence during the trial. The evidence presented to the jury may have been legally insufficient to support the guilty verdict. Or, perhaps some misconduct of the prosecutor occurred during the trial or argument to the jury. These errors of law are all that can be raised in an appeal. But, in order to raise such legal errors on appeal, appellant’s trial attorney must have objected to the judge’s ruling. If no objection is made in the trial court, the issue is waived on appeal. Additionally, even if a court has committed some legal error during the trial, the defendant must show that the error somehow prejudiced the defendant such that, but for the error of law made by the trial judge, a verdict more favorable to the defendant would have occurred in the case.

In felony cases, the record on appeal is prepared after the notice of appeal is filed, thereby giving notice to the clerk of the court to prepare the clerk’s transcript. The reporter’s transcript must be purchased by the defendant, who then files it with the clerk of the court. The evidence exhibits are maintained by the clerk’s office in an exhibit room.

In misdemeanor cases, an additional step is required to prepare the record on appeal. Within 15 days after the timely filing of a notice of appeal, the defendant, who is now called the “appellant,” must prepare and file with the trial court a settled statement on appeal. Normally, the appellant will purchase a reporter’s transcript and rely on that transcript in the appeal. However, the appellant must still file a settled statement on appeal which sets forth the history of the case, the issues to be raised on appeal, and the fact that the appellant will be relying on a reporter’s transcript in setting forth the grounds for any legal errors raised on appeal. Failure to file such a settled statement shall result in the termination of appellant’s right to present a record on which to base an appeal and can result in a dismissal of the appeal and affirmance of the trial court judgment.

Once the trial record is prepared, the appellant prepares a brief in which the appellant presents a statement of the case, a summary of the facts, the specific claims of error that occurred at the trial, and the reasons why conviction and judgment of the trial court should be reversed or modified. The appeal is limited to those claims of error presented in the defendant’s brief. That brief is called “appellant’s opening brief.” In felony cases, appellant’s opening brief must be filed within 40 days of the filing of the normal record on appeal in the reviewing court. In misdemeanor cases, appellant’s opening brief must be filed within 20 days of the filing of the record on appeal with the appellate department of the superior court in which the trial had occurred. The appellant can ask for extensions of time within which to file an opening brief. That is done by filing a motion in the reviewing court.

Appellant’s opening brief must also be served, that is, given to the prosecutor in the case who represents the People of the State of California, now called the “respondent.” Felonies are prosecuted by a district attorney in the trial court, but, in the appellate court, the California Attorney General becomes the prosecutor and represents the “respondent.” Misdemeanors are prosecuted in the trial and appellate courts by either a local city attorney or the district attorney.

Respondent then files its brief, in response to which appellant may file a reply brief.

The reviewing court then sets the matter on its docket for oral argument. That is the time at which each side has the opportunity to present its arguments personally to the judges or justices of the reviewing court who will decide the case. After oral argument, the case is submitted and the reviewing court decides the case. The court’s written decision is then issued and eventually becomes final. In felony matters, a decision of the court of appeal becomes final 30 days after the decision is filed. In misdemeanor matters, the decision of the appellate department of the superior court becomes final 15 days after the decision is announced. In felony matters, if the appellant loses the appeal, he or she may petition the California Supreme Court for a writ of review. That petition for review must be filed with the Supreme Court within 10 days after the court of appeal decision has become final. Those petitions are rarely granted, though, and, for most appeals, the case will be over. In misdemeanor matters, the losing party may request that the case be transferred to the court of appeal. Once again, that rarely happens, for most appeals the case will be over after the appellate department’s written decision becomes final. In all cases, once the reviewing court’s decision is final, it will issue a remittitur. The remittitur signifies that the appeal process is complete and that jurisdiction of the case is revested in the trial court.

At this stage, if a federal constitutional issue was involved in the case and the issue was decided adversely to the defendant, he or she may petition the United States Supreme Court for a writ of certiorari. A writ of certiorari is an order from the Supreme Court to a state court to send the case to the Court for its review. The Supreme Court has discretion over which cases it chooses to hear and decide. The petition for a writ of certiorari is the only way that a defendant can have his or her case heard by the Supreme Court. Petitions for writs of certiorari are rarely granted.

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If you are in need of a California appellate criminal defense lawyer, or any type of appeals attorney, please call on The Kavinoky Law Firm at once. We have the criminal defense resources to handle any type of appeal or writ to defend your legal interests. Contact us day or night, and we will be in touch with you promptly.