After a conviction the deadlines are short and unforgiving. Under the California Rules of Court, a notice of appeal in a felony case must be filed within 60 days of the rendition of judgment. In a misdemeanor case the period is 30 days. Those deadlines are jurisdictional in effect — miss them and the right to a direct appeal is generally gone, whatever the merits were.
Filing the notice is the simple part, and it does not commit you to anything. It preserves the right while the record is obtained and the case is evaluated. Marc Kohnen has been practicing criminal law in San Diego since 2008 and can review a trial record to tell you honestly whether there is an appealable issue in it.
What an Appeal Is Not
This is the most important thing to understand before spending money on one. An appeal is not a retrial and not a second chance to present your case.
The appellate court does not hear witnesses, does not receive new evidence, and does not decide whether it would have reached a different verdict. It reviews the written record of what happened below and asks whether a legal error occurred. If your appeal depends on evidence that was never presented at trial — a witness nobody called, a document nobody introduced, information discovered afterward — a direct appeal is the wrong vehicle, and a petition for writ of habeas corpus is likely the right one.
Where the Appeal Goes
The forum depends on the level of the offense. A felony conviction from 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 is appealed to the appellate division of the San Diego County Superior Court.
The sequence in either forum is the same: the notice of appeal, then preparation of the record — the reporter's transcript of the proceedings and the clerk's transcript of the filings — then an opening brief identifying the errors, a respondent's brief from the Attorney General or District Attorney, a reply, and in some cases oral argument. The record is the foundation of everything, and obtaining a complete one is a substantive task rather than a clerical one.
What Counts as an Appealable Error
Appellate courts reverse for legal error, and not every error results in reversal — many are reviewed for whether they were harmless. The issues that recur:
- Erroneous denial of a motion to suppress evidence obtained in an unlawful search or seizure
- Instructional error — jury instructions that misstated the law or omitted a required element or defense
- Wrongly admitted or wrongly excluded evidence, including expert testimony
- Insufficient evidence to support the verdict as a matter of law
- Sentencing error — an unauthorized sentence, a miscalculated term, or a prior conviction finding unsupported by the record
- Prosecutorial misconduct in argument or in the handling of evidence
- Failure to disclose exculpatory evidence
If You Pleaded Guilty
A guilty or no contest plea narrows the appeal considerably but does not always eliminate it. Penal Code section 1237.5 generally requires a certificate of probable cause from the trial court to appeal issues concerning the validity of the plea itself, and that request has its own timing.
Certain issues survive a plea without a certificate — most notably the denial of a motion to suppress and questions about the sentence imposed. A plea also does not foreclose a habeas petition raising something outside the record, such as advice you were given that was wrong. Sorting out which route applies is the first analysis in a post-plea case.
Habeas Corpus and Other Post-Conviction Relief
Where the problem is not visible in the trial record, a petition for writ of habeas corpus under Penal Code section 1473 is the mechanism. Habeas reaches claims that a direct appeal structurally cannot, because it permits new evidence in support of the petition.
The claims that typically belong here include ineffective assistance of counsel, newly discovered evidence, a witness recantation, juror misconduct discovered after trial, and prosecutorial suppression of exculpatory material. Habeas has no single filing deadline the way a direct appeal does, but it carries its own requirement that a petition be brought without substantial delay, so waiting has consequences. For a non-citizen, a motion to vacate under Penal Code section 1473.7 addresses a conviction entered without a meaningful understanding of its immigration consequences, and that is a separate remedy with separate requirements.
Get the Record Reviewed Before You Decide
The honest answer about any particular case comes from reading the transcripts, and a lawyer who promises an outcome before doing that is not being straight with you. Some records contain a clear preserved error. Many contain issues that were never objected to below and are therefore difficult or impossible to raise now, which is itself worth knowing before you invest in an appeal.
What should not wait is the notice of appeal. It is inexpensive, it preserves the right while the evaluation happens, and once the 60 days have run there is usually no way back. If you or a family member was convicted in San Diego County and the judgment is recent, call (619) 398-2500 now for a free, confidential consultation — and bring the date of sentencing, because that is the date the clock runs from.
More on Criminal Defense
- Outstanding Warrants — Clearing bench and arrest warrants before they clear you out of a job or a home.
- Bail Hearings — The schedule amount is a starting point — reduction, OR release and conditions under PC §1275.
- Probation Violations — PC §1203.2 hearings — no jury, a lower burden of proof, and the suspended sentence back in play.
- Three Strikes — One prior doubles the term, two can reach 25-to-life — and a Romero motion can strike a prior.
Back to the Criminal Defense overview.
Legally reviewed by Marc S. Kohnen, Attorney at Law — State Bar of California #255303, defending San Diego since 2008.
Free, confidential case evaluation — available 24 hours at (619) 398-2500.