California Appeals

A person convicted of a misdemeanor or felony after trial has the right to appeal the conviction. Additionally, a person has the right to appeal certain legal issues following a plea of guilty or no contest in certain circumstances. In other cases, a person has the right to an interlocutory appeal of the denial of a motion to suppress evidence brought pursuant to Penal Code section 1538.5, if the motion was filed within a specified time period following the arraignment.

AppealsFelony convictions and interlocutory appeals are appealed to the California Court of Appeal. There are six districts of the Court of Appeal. There are six appellate districts in California: The First District is located in San Francisco; the Second District is located in Los Angeles and Ventura; the Third District is located in Sacramento; the Fourth District is located in San Diego, Riverside, and Santa Ana; the Fifth District is located in Fresno; and the Sixth District is located in San Jose. A decision of the Court of Appeal may be appealed to the California Supreme Court by way of a Petition for Review. Review by the California Supreme Court is discretionary.

Misdemeanor convictions and interlocutory appeals are appealed to the appellate division of the superior court in which the trial was held, plea was entered or the matter was heard.

In order to appeal any issue in either the Court of Appeal or Appellate Division of the Superior Court it is necessary to file a Notice of Appeal within a specified period of time. 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 on time, a person will probably lose their right to appeal except in certain limited circumstances.

The filing of a Notice of Appeal does not automatically stay or place the execution of a sentence on hold in a criminal case. A separate application for an order staying a sentence or term of probation must be made and granted in the trial court. If the application for a stay in the trial court is denied, it may then be made in the court where the Notice of Appeal has been filed. Such an application is called a Petition for a Writ Of Supersedeas.

If the superior court does not stay the execution of a sentence, an appellant may request bail while the appeal is pending. In a felony appeal, the decision of whether to grant bail on appeal is discretionary. In misdemeanor cases, the appellant is entitled to bail as a matter of right. If bail is denied by a trial court, appellant may then ask for bail in the court where the appeal is pending.

Appeals are limited to prejudicial errors of law which occurred at the hearing or at trial. The reviewing court will not evaluate the evidence presented at the trial. Also, it is important to know that an appeal is based only on the record of the trial proceedings and the argument of the appellate attorneys. The record on appeal consists of three items:

  • The Reporter’s transcript, which is a verbatim reporting of everything that was said at the trial on the record
  • The Clerk’s transcript, which is a copy of all items contained in the court file, such as Motions, Minute Orders, requested jury instructions, jury instructions which were read, written rulings by the court, and exhibit lists of the evidence presented
  • The exhibits themselves, whether or not admitted into evidence

The issues raised on appeal are limited to what is contained in the record and nothing outside of the record can be raised as an issue in the appeal. The record of the trial proceedings includes a transcript of all witness testimony, the lawyers’ arguments, the judge’s rulings, jury instructions requested and given, questions by members of the jury or the jury itself, comments to the jury, and all of the documents filed in the case with the court clerk.

In felony cases, the record on appeal is prepared after the Notice of Appeal is filed. This gives notice to the Clerk of the superior court to prepare the Clerk’s transcript. The Reporter’s transcript must be purchased by the defendant. The evidence exhibits are maintained by the Clerk’s Office in an exhibit room unless the attorneys at trial stipulated to their being returned to the respective attorneys.

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 statement of the relevant facts from the record, the specific claims of error that occurred at the trial, the prejudice to the appellant, 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 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 request an extension of time to file an opening brief which are typically granted.

Appellant’s Opening Brief must be provided to the government attorney who will oppose the appeal. In a misdemeanor case this is typically a member of the county district attorney’s office. In a felony case, a government attorney with the California Attorney General’s office will typically replace the county district attorney and represent the state.

Respondent then files its Response Brief within a designated period of time. Appellant may file a Reply Brief.

Oral argument must be requested. Following a request, the reviewing court then schedules the case for Oral Argument. That is the time during which each side has the opportunity to present its arguments personally to three 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 becomes final unless a losing party requests reconsideration or petitions the California Supreme Court or California Court of Appeal for review.

If you have a question about a California appellate issue, feel free to contact this office to consult with Robert Tayac. Mr. Tayac is a former staff attorney with Appellate Defenders where he represented people in appeals before the Fourth District Court of Appeal. Mr. Tayac wrote the third appellate brief following passage of California’s Three Strikes law and has been cited as an authority by the California Supreme Court in People v. McNeil.