WHAT IS AN APPEAL?
An appeal is primarily an appellate court's review of the trial court proceedings to see if procedural error was committed. The review is based upon the written records of the trial court. The appellate court accepts no new evidence. Nor does the Court of Appeal decide whether a defendant who is appealing (referred to as the "appellant" in the appellate court) is guilty or innocent. That is the function of a trial court. Instead, the Court of Appeal considers whether the trial court proceedings were conducted legally: did you get a fair trial or hearing at which the correct legal rulings on law and procedure were made?
The Court of Appeal has several choices in deciding your appeal. It can affirm the judgment of the lower court, in which case the decision of the lower court remains unchanged. It can modify the judgment, so that the decision of the lower court remains but with some change in it. For example, the sentence could be modified to provide concurrent rather than consecutive sentences, or to give credit for time served. The appellate court can also reverse the judgment of the lower court in part or entirely. If it does reverse, the case is sent back to the trial court, usually for retrial on the reversed part, although on rare occasions a case will be reversed with directions to dismiss. Generally a reversal does not mean that the matter is closed, but rather that you are entitled to have the trial or hearing done over again correctly in the lower court.
In California there are two levels of appellate courts: the Court of Appeal and the Supreme Court. Misdemeanor appeals are handled separately, through the Appellate Department of the Superior Court. Except in death penalty cases, all felony appeals go to the Court of Appeal in the district in which the trial court proceedings were conducted.
After the Court of Appeal has made its decision, either party can petition for a hearing in the California Supreme Court. The Supreme Court has a different role from that of the Court of Appeal. Whereas the Court of Appeal reviews every appeal for error, the Supreme Court grants review in only a very few cases which present legal issues of statewide importance.
THE RECORD
After you filed your notice of appeal, the clerk and court reporter in the trial court began preparing the record on appeal. The record consists of the reporter's transcript, a word-for-word account of the trial and other relevant hearings, and the clerk's transcript, which consists of pleadings, minute orders, jury instructions, the abstract of judgment, and other documents on file in the lower court.
The Court of Appeal provides only one appellant's copy of the record. During the course of the appeal, the attorney needs to retain that copy to represent the client effectively on appeal. When the appeal is over, it is customary to send the entire record to the client, unless the client expressly asks that the record be retained by the attorney or sent to a designated third party.
Although the record is supposed to be prepared in 20 days, extensions are often requested by the court reporter and granted by the Court of Appeal, especially in longer trials, so that a far more substantial amount of time may pass before the attorney receives the record.
Often the record filed in the Court of Appeal does not contain everything needed to represent you effectively on appeal. If that is the case, the attorney will file a motion in the Court of Appeal to augment (add to) the record. It usually takes at least two weeks for the Court of Appeal to act upon a request for augmentation. If the motion is granted, there will be a further delay, usually approximately 30 to 90 days, until the additional record is prepared. Normally the opening brief will not be due until 30 days after the augmented record is filed in the Court of Appeal.
COMMUNICATIONS ABOUT YOUR CASE
The attorney will write to you periodically to notify you of significant developments in your case and to respond to your letters. Your correspondence, and all other information the attorney acquires in relation to your case, will be kept in strictest confidence.
Ordinarily the attorney will communicate with you by mail. This attorney-client mail is confidential, and no authorities in a state institution are entitled to read it. Be sure to write "Attorney-Client Mail" or "Legal Mail" on the envelope of every letter you send in order to avoid review of the confidential contents by prison authorities.
If you have legal questions about your case, you should write to the attorney directly. Do not have third parties call to ask your attorney about your case. The attorney cannot discuss your case with any non-attorney other than you without violating the attorney-client privilege.
The court does not approve of client visits unless advance permission is obtained and extraordinary circumstances require such a visit. The court generally deems communications by mail to be adequate on appeal by reason of the nature of an appeal, which is generally limited to a review of the trial record.
Although your communications with the attorney and with Sixth District Appellate Program are privileged and cannot be revealed to others without your permission and cannot be used against you, your communications with most other people are probably not so protected. Therefore, you should be extremely cautious about discussing the details of your case with prison guards, other inmates, or anyone else, either in person or in writing. If you divulge incriminating information to them, you may some day find these people as witnesses against you should your appeal succeed in gaining you a retrial.
PREPARATION OF THE BRIEFS
Appellant's opening brief is due 40 days after the completed record is filed with the Court of Appeal. Often an attorney will request an extension of 30 days because more time is needed to complete the research and writing. The brief is a written argument stating the reasons why the trial court's decision should be reversed or modified. The purpose of the brief is to point out any errors that may have occurred in the court below which were serious enough that the result must be changed. It is not enough to show that some error occurred; just because your trial was not error-free does not mean you are entitled to a new trial. An appellant must show that the errors were prejudicial, so that the judgment must be reversed or modified. The brief is based strictly on the record on appeal and may not contain arguments based on statements, documents, or events which are not included in that record. In other words, your appeal can challenge only things which the record shows actually occurred in the lower court. Everything which the appellate court has to consider in determining the issues raised on appeal must be included in the brief, whether it is favorable or unfavorable to you. Although the brief will emphasize your side of the issue, the attorney is obligated to present the whole picture in the brief.
The attorney will conscientiously review the record on appeal for error. In order to uncover any arguable issues which may be presented on your behalf, the attorney will read the transcripts, talk with trial counsel, ask for your suggestions, and review the trial court files where appropriate. Any issues the attorney finds will be set forth in the opening brief.
However, in the rare event that the attorney does not find that any significant errors have occurred in the lower court proceedings, the attorney will promptly consult with you, inform you of the results of the research and investigation, and ask you how you wish to proceed. If the attorney finds that there are no arguable issues to raise, there are basically two available options: (1) abandon the appeal; or (2) file what is known as a Wende brief.
If you file an abandonment of your appeal, it is almost certain that the Court of Appeal will dismiss your appeal or affirm the judgment of the trial court, thus ending the appellate process. There will ordinarily be no further review of your conviction by any appellate court.
In a Wende brief, the attorney would set forth a statement of the case and a statement of the pertinent facts and would ask the court to review the record to determine if there are any arguable issues. The attorney would indicate that if the court does find arguable issues that the attorney would be available to present these issues to the court. If, after reviewing the record, the court concludes that there are arguable issues it will direct the attorney to brief them. If the court concludes there are no arguable issues, it will so notify you and give you an opportunity to raise any issues you may think exist in the case. If you do raise issues and submit then to the court, the court will consider them. If you do not, the court will affirm your conviction or dismiss your appeal.
When an appellant's opening brief has been filed on your behalf, the Attorney General, who is the respondent in almost all criminal appeals, has 30 days to prepare and file a respondent's brief. Often the Attorney General will request one or more extensions of 30 days in which to file that brief, and those requests are usually granted by the Court of Appeal. The Attorney General's brief, like your brief, must be based solely on the record on appeal.
If some response is needed to counter an argument made by the Attorney General, the attorney can file an appellant's reply brief on your behalf. A reply brief is not filed in every case, but if it is it must be filed within 20 days of the day the Attorney General's brief was filed.
ORAL ARGUMENT
Once all the briefs have been filed, your case may be set for oral argument in the Court of Appeal. Oral argument is no longer automatically set in every case. The clerk of the Court of Appeal usually sends counsel for both sides a notice that if oral argument is not requested within 10 days, the court will not set the matter for argument and will deem the matter submitted on the briefs. The attorney will request oral argument if there is any advantage to be gained by arguing your case. Otherwise, oral argument will be waived. Argument is usually set at least three months after the last brief is filed.
On the day of oral argument, your attorney and an attorney from the Attorney General's office will appear before three justices of the Court of Appeal and argue the case. Argument is relatively brief. No live witness testimony is taken. The opinion of the court is generally written before oral argument. The court does not hear any new evidence. You will not be brought to court for the argument if you are in custody. If you are out of custody, you are welcome to attend and watch, although you are not permitted to participate.
THE COURT'S OPINION
Within 90 days after the case is ordered submitted, the Court of Appeal will file its written opinion stating whether the judgment should be affirmed, reversed, or modified. The court will send a copy of its opinion directly to you, as well as to me. Every defendant should be aware that, simply as a matter of statistics, fewer than 10 percent of all the criminal felony convictions reviewed by the Court of Appeal are actually reversed. A somewhat larger percentage of cases do receive partial reversals or modifications of the judgment. These modifications, particularly those related to sentencing, can be very important in affecting the time you actually serve, even though they fall short of total reversal of your conviction.
FURTHER REVIEW
As soon as the opinion of the court of appeal is received, the attorney will make a careful review of the opinion and the case to determine whether the attorney should take any further steps on your behalf. If the answer is no, the attorney will notify you promptly by letter and send you the record on appeal to proceed further on your own. If you do, you must comply with the time requirements discussed below.
If the attorney concludes that further review is appropriate, there are two possibilities. A petition for rehearing can be filed in the Court of Appeal. The purpose of a petition for rehearing is to point out to the Court of Appeal some misstatements of fact or misapplication of law and to ask that court to reconsider its decision. The petition for rehearing must be filed within 15 days of the filing of the court's written opinion. The Court of Appeal then has another 15 days to decide whether to grant a rehearing, which it rarely does. If no rehearing is granted within 30 days of the court's opinion, that opinion becomes final.
Once the opinion of the Court of Appeal becomes final, the other possibility for further review becomes available. A petition for review can be filed in the California Supreme Court within 10 days after the opinion of the Court of Appeal becomes final, that is between the 30th and 40th day after the date stamped on the Court of Appeal's opinion. The petition must be filed within this short time period. If the attorney deems such a petition appropriate, then a petition for review will be filed on your behalf.
Once review in the California Supreme Court has been exhausted, it is possible to seek review in federal court, usually by petition for certiorari to the United States Supreme Court filed within 90 days of the denial of petition for review by the California Supreme Court or by habeas corpus petition in the United States District Court within one year after the California Supreme Court denies review. The time a state habeas corpus petition is pending in California courts does not count toward the one year deadline for filing a federal habeas corpus petition. Federal review is appropriate only where you can contend that a federal constitutional right has been violated. The likelihood of obtaining hearing and relief in the United States Supreme Court is very small. If you are interested in pursuing these channels, you must do so on your own, as the attorney’s appointment does not extend to them. In such cases, you may proceed initially in propria persona and request that the court appoint counsel for you or hire a retained attorney to represent you.
DEPENDENCY APPEALS
An appeal is primarily an appellate court's review of the juvenile court proceedings to see if procedural error was committed. The review is based upon the written records of the juvenile court. The appellate court accepts no new evidence. Nor does the Court of Appeal decide whether a party who is appealing (referred to as the "appellant" in the appellate court) is factually correct. That is the function of a juvenile court. Instead, the Court of Appeal considers whether the juvenile court proceedings were conducted legally: did you get a fair hearing at which the correct legal rulings on law and procedure were made?
The Court of Appeal has several choices in deciding your appeal. It can affirm the judgment of the lower court, in which case the decision of the lower court remains unchanged. It can modify the judgment, so that the decision of the lower court remains but with some change in it. The appellate court can also reverse the judgment of the lower court in part or entirely. If it does reverse, the case is sent back to the juvenile court, usually for retrial on the reversed part, although on rare occasions a case will be reversed with directions to dismiss. Generally a reversal does not mean that the matter is closed, but rather that you are entitled to have the trial or hearing done over again correctly in the lower court.
After the Court of Appeal has made its decision, either party can petition for a hearing in the California Supreme Court. The Supreme Court has a different role from that of the Court of Appeal. Whereas the Court of Appeal reviews every appeal for error, the Supreme Court grants hearing in only a very few cases which present legal issues of statewide importance.
THE RECORD
After you filed your notice of appeal, the clerk and court reporter in the juvenile court began preparing the record on appeal. The record consists of the reporter's transcript, a word-for-word account of the trial and other relevant hearings, and the clerk's transcript, which consists of pleadings, minute orders, and other documents on file in the lower court.
The Court of Appeal provides only one appellant's copy of the record. During the course of the appeal, the attorney needs to retain that copy to represent the client effectively on appeal. When the appeal is over, it is customary to send the entire record to the client, unless the client expressly asks that the record be retained by the attorney or sent to a designated third party.
Although the record is supposed to be prepared in 20 days, extensions are often requested by the court reporter and granted by the Court of Appeal, especially in longer trials, so that a far more substantial amount of time may pass before your attorney receives the record.
Remember that the record will eventually be yours to keep. Your attorney will send it to you as soon as the appeal has concluded. Until the appeal is over, however, the attorney must retain the appellate record in order to represent you effectively on appeal.
Often the record filed in the Court of Appeal does not contain everything need to represent you effectively on appeal. If that is the case, the attorney will file a motion in the Court of Appeal to augment (add to) the record. It usually takes at least two weeks for the Court of Appeal to act upon a request for augmentation. If the motion is granted, there will be a further delay, usually approximately 30 to 90 days, until the additional record is prepared. Normally the opening brief will not be due until 30 days after the augmented record is filed in the Court of Appeal.
COMMUNICATIONS ABOUT YOUR CASE
Your attorney will write to you periodically to notify you of significant developments in your case and to respond to your letters. Your correspondence, and all other information your attorney acquires in relation to your case, will be kept in strictest confidence.
Ordinarily your attorney will communicate with you by mail. If you are in custody, the attorney-client mail is confidential, and no authorities in a state institution are entitled to read it. Be sure to write "Attorney-Client Mail" or "Legal Mail" on the envelope of every letter you send to your attorney in order to avoid review of the confidential contents by prison authorities.
If you have legal questions about your case, you should write to your attorney directly. Do not have third parties call to ask your attorney about your case. Your attorney cannot discuss your case with any non-attorney other than you without violating the attorney-client privilege.
The court does not approve of client visits unless advance permission is obtained and extraordinary circumstances require such a visit. The court generally deems communications by mail to be adequate on appeal by reason of the nature of an appeal, which is generally limited to a review of the trial record.
Although your communications with your attorney are privileged and cannot be revealed to others without your permission and cannot be used against you, your communications with most other people are probably not so protected. Therefore, you should be extremely cautious about discussing the details of your case with prison guards, other inmates, or anyone else, either in person or in writing. If you divulge incriminating information to them, you may some day find these people as witnesses against you should your appeal succeed in gaining you a retrial.
Please cooperate in keeping your attorney informed as to where you can be reached.
PREPARATION OF THE BRIEFS
Appellant's opening brief is normally due 40 days after the completed record is filed with the Court of Appeal. In an appeal from the termination of parental rights, the opening brief is due in 30 days after the filing of the record. Sometimes, an attorney will request an extension of 30 days because more time is needed to complete the research and writing. The brief is a written argument stating the reasons why the juvenile court's decision should be reversed or modified. The purpose of the brief is to point out any errors that may have occurred in the court below which were serious enough that the result must be changed. It is not enough to show that some error occurred; just because your trial was not error-free does not mean you are entitled to a new trial. It must be shown that the errors were prejudicial, so that the judgment must be reversed or modified. The brief is based strictly on the record on appeal and may not contain arguments based on statements, documents, or events which are not included in that record. In other words, your appeal can challenge only things which the record shows actually occurred in the lower court. Everything which the appellate court has to consider in determining the issues raised on appeal must be included in the brief, whether it is favorable or unfavorable to you. Although your attorney will emphasize your side of the issue, he or she is obligated to present the whole picture in the brief.
Your attorney will conscientiously review the record on appeal for error. In order to uncover any arguable issues which may be presented on your behalf, he or she will read the transcripts, talk with your trial attorney, ask for your suggestions, and review the juvenile court files where appropriate. Any issues your attorney finds will be set forth in the opening brief.
However, in the rare event that the attorney does not find that any significant errors have occurred in the lower court proceedings, the attorney will promptly consult with you, inform you of the results of your attorney’s research and investigation, and ask you how you wish to proceed. If your attorney finds that there are no arguable issues to raise, there are basically three available options: (1) you can abandon the appeal; (2) your attorney can file what is known as a Sade C. letter; or (3) you can request that the court relieve your attorney, and you can write your own brief to file in the court of appeal. In a Sade C. letter, your attorney explains to the court that there could not be found any grounds for changing the juvenile court’s decision.
If you file an abandonment of your appeal or if your attorney files a Sade C. letter, it is almost certain that the Court of Appeal will dismiss your appeal and affirm the judgment of the juvenile court, thus ending the appellate process. There will ordinarily be no further review of the judgment by any appellate court.
When an appellant's opening brief has been filed on your behalf, child protective services and the minor’s attorney, who are the respondents in almost all dependency appeals, have 30 days to prepare and file a respondent's brief. Often they will request one or more extensions of 30 days in which to file that brief, and those requests are usually granted by the Court of Appeal. Their briefs, like your brief, must be based solely on the record on appeal. The minor’s brief can be filed after the appellant’s reply brief.
If some response is needed to counter an argument made by the respondent, your attorney can file an appellant's reply brief on your behalf. A reply brief is not filed in every case, but if it is, it must be filed within 20 days of the day the respondent’s brief was filed.
ORAL ARGUMENT
Once all the briefs have been filed, your case may be set for oral argument in the Court of Appeal. Oral argument is no longer automatically set in every case. The clerk of the Court of Appeal usually sends counsel for both sides a notice that if oral argument is not requested within 10 days, the court will not set the matter for argument and will deem the matter submitted on the briefs. Your attorney will request oral argument if there is any advantage to be gained by arguing your case. Otherwise, oral argument will be waived. Argument is usually set between one and three months after the last brief is filed.
On the day of oral argument, your attorney and the attorneys from county counsel and for the minor will appear before three justices of the Court of Appeal and argue the case. Argument is relatively brief. No live witness testimony is taken. The opinion of the court is generally written before oral argument. The court does not hear any new evidence. You will not be brought to court for the argument if you are in custody. If you are out of custody, you are welcome to attend and watch, although you are not permitted to participate.
THE COURT'S OPINION
Within 90 days after the case is ordered submitted, the Court of Appeal will file its written opinion stating whether the judgment should be affirmed, reversed, or modified. The court will send a copy of its opinion directly to you, as well as to your attorney. Every defendant should be aware that, simply as a matter of statistics, fewer than 10 percent of all dependency judgments reviewed by the Court of Appeal are actually reversed. A somewhat larger percentage of cases do receive partial reversals or modifications of the judgment. These modifications, particularly those related to sentencing, can be very important in affecting the time you actually serve, even though they fall short of total reversal of the judgment.
FURTHER REVIEW
As soon as the opinion of the court of appeal is received, your attorney will make a careful review of the opinion and the case to determine whether your attorney should take any further steps on your behalf. If the answer is no, your attorney will notify you promptly by letter and send you the record on appeal to proceed further on your own. If you do, you must comply with the time requirements discussed below.
If your attorney concludes that further review is appropriate, there are two possibilities. A petition for rehearing can be filed in the court of appeal. The purpose of a petition for rehearing is to point out to the Court of Appeal some misstatements of fact or misapplication of law and to ask that court to reconsider its decision. The petition for rehearing must be filed within 15 days of the filing of the court's written opinion. The Court of Appeal then has another 15 days to decide whether to grant a rehearing, which it rarely does. If no rehearing is granted within 30 days of the court's opinion, that opinion becomes final.
Once the opinion of the Court of Appeal has become final, the other possibility for further review becomes available. A petition for review can be filed in the California Supreme Court within 10 days after the opinion of the Court of Appeal becomes final, that is between the 30th and 40th day after the date stamped on the Court of Appeal's opinion. The petition must be filed within this short time period. If your attorney deems such a petition appropriate, then he or she will file a petition for review on your behalf.
Once review in the California Supreme Court has been exhausted, it is possible to seek review in federal court by petition for certiorari to the United States Supreme Court filed within 90 days of the denial of petition for review by the California Supreme Court. Federal review is appropriate only where you can contend that a federal constitutional right has been violated. The likelihood of obtaining hearing and relief in the United States Supreme Court is very small.