How to Appeal a Criminal Conviction in California

An appeal asks a higher court to read the record of what happened in the trial court and decide whether a legal error occurred that was serious enough to change the result. That is a narrower question than most people expect, and understanding it early saves a great deal of disappointment later.

The deadlines run from the date of judgment, not from the date you decide to do something. A felony notice of appeal is due within 60 days, a misdemeanor notice within 30, and courts have almost no power to extend either.

What an Appeal Reviews and What It Leaves Alone

The appellate court reviews a paper record. It does not hear testimony, does not take new evidence, and does not sit as a second jury. Justices read the transcripts and the briefs and answer legal questions.

So several things people expect from an appeal are unavailable in one. The court will not re-decide whether a witness was telling the truth, because credibility was the jury's job. It will not reweigh the evidence or consider a witness who never testified or information discovered after the verdict, because none of that is in the record.

It will decide whether the judge applied the law correctly, whether the jury was instructed correctly, whether evidence was properly admitted or excluded, whether the sentence was lawful, and whether the evidence presented was legally sufficient.

How Long Do You Have to File a Notice of Appeal?

In a felony case, California Rules of Court, rule 8.308(a) requires the notice of appeal to be filed within 60 days after the rendition of judgment, which for most defendants means 60 days from sentencing. In a misdemeanor case, rule 8.853(a) sets the period at 30 days, and rule 8.902(a) sets the same 30 days for an infraction.

These deadlines function as jurisdictional. A reviewing court generally cannot extend them or excuse a late filing for good cause, and a late notice is ordinarily dismissed without any look at what happened at trial. One narrow doctrine, constructive filing, has occasionally saved an appeal where an incarcerated defendant reasonably relied on trial counsel's promise to file, but it turns on specific facts and is not a plan.

Which Court Hears a California Criminal Appeal

The forum depends on the level of the offense and on where the case was tried.

• A felony conviction is appealed to the California Court of Appeal for the appellate district covering that county.
• A misdemeanor or infraction conviction is appealed to the appellate division of the same superior court, made up of superior court judges assigned to hear those appeals.
• After a Court of Appeal decision, either side may petition the California Supreme Court for review, due shortly after the decision becomes final below. Review is discretionary and granted in a small fraction of cases.
• A defendant who has exhausted state remedies may file a federal habeas corpus petition under 28 U.S.C. section 2254, which carries a one-year limit and deferential review of the state judgment.

Appealing After a Guilty or No Contest Plea

A plea limits an appeal without always eliminating it. Penal Code section 1237.5 provides that a defendant who pleaded guilty or no contest cannot appeal issues going to the validity of the plea unless the trial court issues a certificate of probable cause, a request filed in the trial court on the same deadline as the notice.

Some issues survive a plea without a certificate. The denial of a motion to suppress under Penal Code section 1538.5 remains reviewable. So do matters that arose after the plea and do not attack its validity, which usually means the sentence: an unauthorized term, a miscalculated credit award, or a sentencing choice the court had no power to make.

A plea does foreclose an argument that the evidence was insufficient, because it admitted the charge. A claim that the plea was not knowing and voluntary usually depends on facts outside the record.

The Record, the Briefs, and How Long an Appeal Takes

The superior court then prepares the record, which has two parts: the clerk's transcript, containing the filings, minute orders, instructions, and judgment, and the reporter's transcript, the word-for-word account of the proceedings.

Appellate counsel reads the record and frames the issues. The opening brief states the facts with citations to the record, identifies the standard of review for each claim, and explains why the error was prejudicial. The Attorney General or the district attorney files a respondent's brief, and the appellant may reply. Either party may request oral argument, and a cause must be decided within 90 days after it is submitted, a deadline the California Constitution enforces by withholding a judge's salary.

From notice of appeal to opinion, a felony appeal commonly takes about one to two years. A defendant who cannot afford counsel may request appointed appellate counsel.

Release Pending Appeal

Filing an appeal does not by itself stop a sentence from being served. Release pending appeal is governed by Penal Code sections 1272 and 1272.1. After a misdemeanor conviction it is available as a matter of right in the situations the statute specifies. After a felony conviction it is discretionary, with the court weighing flight risk, danger, and whether the appeal raises a substantial legal question.

Standards of Review, in Plain Language

The standard of review tells the appellate court how much deference to give what the trial judge did. It is the part most people have never heard of, and it often decides the case: the same facts can win under one standard and lose under another. Three of them cover most claims.

• De novo, for questions of law. The court decides the question fresh and owes the trial judge no deference. Statutory interpretation, whether an instruction stated the law correctly, and most constitutional questions are reviewed this way. It is the most favorable standard for an appellant.
• Substantial evidence, for factual findings and for a challenge to the sufficiency of the evidence. The court views the record in the light most favorable to the judgment and asks only whether a reasonable jury could have reached the verdict, not whether it would have. Conflicts in the testimony are resolved in favor of the outcome below, so these claims rarely succeed.
• Abuse of discretion, for rulings the judge had authority to decide either way, including most evidentiary rulings and many sentencing choices. The question is not whether the judge made the better choice but whether the ruling fell outside the bounds of reason or rested on a mistake of law.

Harmless Error: Why Winning the Issue Is Not Always Winning the Appeal

Showing that the trial court erred is only half of an appeal. For most kinds of error the court then asks whether it was harmless, meaning whether it affected the outcome.

Two tests govern that question. For error violating the federal Constitution, Chapman v. California requires the state to show the error was harmless beyond a reasonable doubt, a demanding burden carried by the prosecution. For error under state law only, People v. Watson places the burden on the defendant to show a reasonable probability of a more favorable result without the error. Which test applies is often the difference between reversal and affirmance. A narrow category of structural errors requires reversal without any showing of prejudice.

Common Grounds for a Criminal Appeal

Appellate issues come from the record, so they fall into recognizable categories.

• Instructional error: an instruction that misstated the law, omitted an element, or failed to cover a defense or a lesser included offense supported by the evidence.
• Evidentiary error: evidence admitted that should have been excluded, or defense evidence wrongly kept out.
• Insufficient evidence: a conviction no reasonable jury could have reached on the evidence presented as to at least one element.
• Prosecutorial misconduct: improper argument, misstatements of the law or the evidence, comment on the exercise of a constitutional right, or failure to disclose exculpatory material.
• Juror misconduct: concealment during jury selection, outside research, or consideration of information not presented in court.
• Sentencing error: an unauthorized term, an improper enhancement, a prior conviction finding unsupported by the record, miscalculated credits, or a failure to exercise discretion the law required.

Ineffective Assistance of Counsel

Under Strickland v. Washington, a defendant must show both that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability the result would have been different without the deficient performance. Courts presume that what counsel did was a tactical choice.

The claim can be raised on direct appeal only when the record itself shows the failure and the absence of any rational tactical reason for it, which is uncommon. Usually it depends on what the transcripts do not contain: what an uncalled witness would have said, what advice was given off the record. That is why it is ordinarily litigated by petition for writ of habeas corpus.

Can the Prosecution Appeal?

Yes, but only in the limited circumstances listed in Penal Code section 1238. A defendant's right to appeal a conviction is broad; the People's right is defined by statute and does not exist outside it. The orders the prosecution may appeal include one setting aside an indictment or information, one granting a new trial, a dismissal of the action under Penal Code section 1385, an order granting a motion to suppress evidence under Penal Code section 1538.5 in the circumstances the statute describes, and an unlawful sentence.

What the prosecution cannot do is appeal a verdict of not guilty. Once a jury acquits, the double jeopardy clause forbids retrying the defendant for that offense, however clearly the trial court erred. The statute reaches a dismissal where the defendant had not yet been placed in jeopardy, where the defendant waived it, or where the dismissal came after a verdict or finding of guilty.

Alternatives When a Direct Appeal Is the Wrong Tool

A petition for writ of habeas corpus under Penal Code section 1473 is the vehicle for claims that depend on evidence outside the record: ineffective assistance of counsel, newly discovered evidence, a recanting witness, juror misconduct found after the verdict, or suppression of exculpatory material. Habeas has no fixed deadline, but a petitioner must proceed without substantial delay and explain any delay. It can be filed alongside a pending appeal.

A motion for new trial under Penal Code section 1181 is made in the trial court before judgment is pronounced, on grounds the statute lists, including jury misconduct, newly discovered evidence, and errors of law at trial. Because it must come before sentencing, it is the easiest of these to lose by inaction.

Penal Code section 1172.1 allows a court to recall a sentence and resentence a defendant. A defendant cannot file that petition directly, but the court may act on its own motion and specified agencies may ask it to. Penal Code section 1473.7 allows a person no longer in custody to move to vacate a conviction or sentence that is legally invalid because of a prejudicial error affecting the ability to understand or defend against its immigration consequences.

What the Court Can Order, and How Often It Happens

An appellate decision is not limited to yes or no. The usual outcomes are affirmance, which leaves the judgment in place; reversal with a remand for a new trial; reversal with directions, telling the trial court what to do, such as dismiss a count; modification of the judgment, striking an enhancement or correcting the sentence without disturbing the conviction; and a remand for resentencing under the correct standard.

Most criminal appeals end in affirmance, and relief limited to the sentence is more common than reversal of a conviction. Anyone quoting a percentage chance of winning before reading the transcripts is guessing. Many records contain problems no one objected to at trial, which generally forfeits the issue, though there are exceptions including an unauthorized sentence.

If You Are Considering an Appeal After a San Diego Conviction

A felony conviction from the San Diego County Superior Court is appealed to the California Court of Appeal, Fourth Appellate District, Division One, which sits in San Diego. A misdemeanor conviction goes to the appellate division of that superior court. Either way, the clock started the day judgment was pronounced.

File or arrange for the notice of appeal before the 60-day or 30-day period runs. Gather the sentencing minute order, the abstract of judgment, and any correspondence from trial counsel. Avoid discussing the case on a jail line, since those calls are recorded and used.

Marc S. Kohnen, of the Law Office of Marc S. Kohnen at 425 Tenth Avenue in downtown San Diego, has defended criminal cases since 2008 and has taken cases to jury verdict. He is available 24 hours at (619) 398-2500 and can review the record and tell you what it supports. Every case is different and prior results do not guarantee a similar outcome.

Questions People Ask