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Criminal Appeals in California

To appeal the decision of a criminal conviction means to have a judge, different than the one that oversaw the defendant's criminal trial, review the trial process in order to determine whether or not the process was fair to the defendant.

In California, there are three classification of crimes; an infraction, a misdemeanor, and a felony. All three classifications of crime have an appeal process in California. This article deals with the process of appealing a misdemeanor or felony conviction


For starters, every criminal conviction after a trial for either a misdemeanor or a felony may be appealed. The criminal conviction does not have to lead to a jail or prison sentence for the conviction to be appealed. Criminal appeals may be filed either where the defendant was found guilty by a judge or a jury, or where the defendant was sentenced to jail, prison, or an insane asylum.

Plea Bargain Convictions: It is also possible to appeal a guilty plea (or a no contest plea); however, appealing a conviction after a guilty plea (as opposed to a finding of guilt after a trial) may only be based on improper sentencing by a judge or on search and seizure violations based on the Fourth Amendment of the United States Constitution. In some cases, the defendant may e able to withdraw his or her guilty plea, but a withdraw of guilty plea is different than appealing the conviction after a guilty plea.

No New Evidence: The appeals court uses only the transcripts from the trial court to determine whether or not there were any errors in the trial court that prejudiced the defendant. Errors at the trial court level include, but are definitely not limited to the following:

  • A wrong ruling of law by a judge, such as allowing or not allowing evidence erroneously

  • Prosecutor misconduct, such as referring to prejudicial and inadmissible evidence in front of the jury

  • Jury misconduct, such as jurors not following the law or improperly influencing other jurors by threats or fear

  • The defendant's trial counsel (defense attorney) was incompetent, such as where the defense attorney misses obvious and otherwise winning arguments against the admission of damaging evidence

The court of appeals does not question whether or not the defendant is innocent or guilty; it does not listen to new evidence or reconsider evidence; it does not stand as a new trier of the facts. The appeals court simply looks for issues of misapplied law, misconduct, or impropriety by either the judge, the jury, the prosecutor, or the defense attorney.

If the appeals court does find that some error occurred at the defendant's trial then the appeals court will decide whether or not that error was harmless or prejudicial. If the appeals court finds there was error but that the error was not harmless, meaning it was not prejudicial to the defendant, then the court of appeals will simply affirm the trial court's conviction. On the other hand, if the appeals court finds that there was prejudicial error, then the appeals court can reverse the trial court's conviction and send the case back to the trial court for a new trial.


Appeal process: After a final judgment, which is a conviction and a sentence to either jail, prison, probation, or to an insane asylum, the defendant may file an appeal. An appeal must be filed with the trial court within sixty days of a felony conviction and thirty days of misdemeanor conviction. There are some reasons why these time lines might be augmented but those reasons rely on the defendant having to make an argument to the trial judge which is based on inexcusable neglect or improper advice from a defense attorney, deputy, or judge. It may be fatal to a defendant's case to miss the deadline to file an appeal.

After the appeal is filed the defendant's appeals attorney files a brief on behalf of the defendant (now called the appellant). The appeals brief is very complicated and usually very lengthy. The appeals brief contains the arguments made on behalf of the appellant that describes the errors made at the trial level and the prejudice suffered by the appellant. The brief argues the law, the misconduct, or the incompetence as discussed above, not the facts of the appellant's underlying criminal case.

After the appellant files his or her brief the prosecutor files his or her response. The response addresses the issues raised in the appellant's brief. Thereafter, the appellant is allowed to file a reply to the prosecutor's response. After all the briefs are submitted, including supplemental briefs as may be required by the appeals court, the parties might be asked by the appeals court to make oral argument.

The process for filing an appeal in a felony case is very complicated and the rules are very strict. Every step of the appeals process is governed by technical rules that govern all aspect of the filing, timing, and format of the appeal itself. Also, keep in mind that the appeal process, and possible responses from the appeal court is slightly different depending on what kind of criminal appeal is filed.

Appeals Bond: In some cases, a judge may allow the defendant to be released on bail while he or she is awaiting his or her appeal decision. As long as the trial judge does not believe that the defendant is wasting time to stay out of custody, is not a flight risk, and is not a danger to the community, the judge may, in the its discretion, allow for a defendant to be released on bail while awaiting the decision of the appeals court. The amount of bail is usually set by law but the judge has discretion to raise or lower the appeals bond.

Finally, in some cases, if the appellant's attorney does not find any valid reasons to support an appeal he or she may will file a general appeal called a Wende brief. A Wende brief tells the court that the appellant's attorney did not see any valid reasons for an appeals but that he would never-the-less like for the court of appeals to review the transcripts in total to determine whether or not the court of appeals can find issues of appeal (after all, the appeals attorney may be incompetent in finding appeal issues).

To learn more about how to appeal a criminal conviction in California, contact our criminal defense lawyers today for a free consultation. Our attorneys are available every day of the week to assist you. Call today!



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