CONFIDENTIAL ATTORNEY-CLIENT MAIL

This is to inform you that I have been appointed to represent you in your appeal before the Sixth District Court of Appeal. The enclosed information sheet will help you understand what an appeal is all about.

It is your responsibility to keep me informed of any change of your address. I will have to write to you about your appeal, and that will not be possible if I do not have information about any changes in your address.

I would like to know what you expect to get from this appeal. What do you think happened in your case that was unjust? What do you think about your lawyer? Do you think your lawyer's representation was effective? Please explain the reasons for your opinion.

If you pled guilty, pled no contest, or admitted a violation of probation, then you should be aware that most of the time there are no arguments which can be presented on appeal. The law says that when someone pleads guilty and receives the sentence promised by the court, one cannot use an appeal to attack the decision to plead guilty or to argue that one really is innocent.

Please write if you have any question about your appeal and I will reply as quickly as possible.

Sincerely,

Attorney at Law

Enclosure

INFORMATION SHEET FOR APPEALS

I have recently been appointed to represent you on your appeal in the California Sixth District Court of Appeal. This letter will explain what happens in a criminal appeal. I hope that this letter will answer some questions you undoubtedly would like to ask about the appellate process.

What is an Appeal?

An appeal is primarily a review of the county superior court proceedings by the court of appeal to see if there were legal error in that process. The review is based upon the documents and transcripts about what occurred in the county court. The appellate court accepts no new evidence. The court of appeal does not decide whether a defendant who is appealing (referred to as the "appellant") is guilty or innocent. That is decided in the county court where there is a trial or a guilty plea. The court of appeal only decides whether if the proceedings in the county court were fair. Did you get a fair trial or hearing, where the court correctly decided questions of law and procedure? If errors were committed, were they substantial enough to require a reversal of your conviction?

The court of appeal has various choices in deciding your appeal. It can affirm the judgment of the lower court. If it does this, the decision of the lower court remains the same. It can modify the judgment, making some change without reversing (for example, the sentence could be modified to give you more credits, or to order that sentences for some of the charges be served concurrently instead of consecutively). 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 counts, although in some rare cases a case will be reversed with an order to dismiss. Generally a reversal does not mean that the case is over. It only means you have the right to have a new trial or hearing where the law and procedural rules are correctly applied.

In California there are two levels of appellate courts, the Court of Appeal, which is divided into six districts, and the California Supreme Court. Except in death penalty cases, all appeals are decided by the Court of Appeal in the district in which the trial or hearing occurred. Because your case is an appeal from Santa Clara, Santa Cruz, Monterey or San Benito County, your appeal will be decided in the Sixth District of the Court of Appeal, which is located in San Jose.

After the Court of Appeal has made its decision, either party—you, the "appellant," or the Attorney General, the "respondent" — can ask the California Supreme Court to review that decision. The procedure is different in the Supreme Court. While the Court of Appeal reviews every appeal to determine if legal errors occurred, the Supreme Court only reviewed the few cases that present legal issues of great interest to the whole state.

The Record

After the county court files the notice of appeal in your case, the clerk of the court and court reporters began preparing the documents required for your appeal. Those documents consist of the Reporter's Transcript (the word-for-word account of everything that happened in your trial and other hearings in your case) and the Clerk's Transcript (consisting of pleadings, the written orders of the court, jury instructions, etc.)

Unfortunately, the court prepares only one copy of these documents for the appellant. While the appeal is being processed, I need this copy to represent you in your appeal. Eventually I will send these documents for you to keep when I have finished with your appeal.

Often the transcripts filed with the Court of Appeal do not contain everything I need to represent you effectively on appeal. If that occurs, I will file a motion in the Court of Appeal to augment the transcripts. Usually the opening brief which I prepare does not have to be filed until thirty days after the augmented record is filed in the Court of Appeal.

Communications About Your Case

When I receive the transcripts in your appeal, I will write to you as soon as I have had an opportunity to read them. I will let you know what issues I believe, at that point, can be presented in your on appeal. I will ask for your thoughts and suggestions about your appeal, so that I can research the issues you think are important to decide whether it is possible to argue those issues in your appeal. Please respond to my letter, even if only to confirm your address and to let me know that you are receiving my letters. If you are sent to another prison or if your address changes, please notify me of your new address.

Ordinarily I will communicate with you by mail. This attorney-client mail is confidential, and the authorities in a prison or jail are not entitled to read it. When you write me, be sure to write "Attorney-Client Mail" or "Legal Mail" on the envelope of every letter you send me. Your correspondence, and all other documents I acquire in relation to your case, will be kept in a confidential file in my office.

Please write to me at any time; you will receive a prompt response. I might delay a little if I need to get a translation of your letter, and of my response. If you have legal questions about your case, you should write to me directly. Please do not use friends or family members to communicate with me about your case. I cannot discuss anything about your case with other people, because that is a violation of the attorney-client privilege.

Remember that your communications with me are privileged. Other people cannot read what we have written, and your communications with me cannot be used against you. But your communications with other people do not have that protection. Therefore, it would be best if you do not discuss the details of your case with guards, other prisoners or any other person. If you reveal to others incriminating details about your case, those persons could be witnesses against you if your appeal succeeds in gaining you a new trial.

Preparation of the Briefs

In an appeal, in contrast with a trial, the arguments are mostly presented n writing. Appellant's opening brief, which I will prepare, is due forty days after the transcripts in your appeal are filed in the court of appeal. Often I will request more time if I need it to read all the transcripts, research the law and write the opening brief. Remember that at the same time I will be working on other cases which also require my attention.

The brief contains arguments stating the reasons why it is necessary to reverse or modify the county court's decision. The purpose of the brief is to point out any errors that may have occurred in the court below which were serious enough that to change the result must in your case. It is not enough to show that some error occurred; errors in your trail do not automatically lead to the reversal of your convictions. We must show that the errors were "prejudicial" — that absent the error, it is likely that the result in your case would have been different. The brief is based solely on the contents of the transcripts on appeal. One cannot present arguments based on statements, documents, or events which are not found in the transcripts. In other words, your appeal can only challenge things which the transcripts shows actually occurred in the county court. Under appellate rules, I have to present the facts in the manner which most support the decision of the jury or court. I will try to present the arguments with the emphasis on the facts which support your side, but I have to present all the facts in the brief, including those which support the other side.

You may be sure that I will conscientiously review the transcripts looking for errors which occurred in your case. In order to find every issue which can be presented on your behalf, I will read the transcripts, talk with the attorney who represented you in the county court, and ask for your suggestions. If necessary, I will review the trial court files. I will include in the opening brief every favorable issue I find.

However, sometimes after carefully reviewing everything about your case, I do not find any significant errors. In this situation, which rarely occurs, I will write to you informing you of the results of my research and investigation, and asking what you want to do. When I have found no meritorious issues, you have two options: (1) you can abandon the appeal; or (2) I can file a "Wende" brief. If you decide to file a document abandoning your appeal, it is almost certain that the Court of Appeal will dismiss your appeal. Ordinarily, that would be the end of any review of your conviction by an appellate court. If I prepare a Wende brief, I would explain to the court of appeal what happened in your case in the county court, and ask the court to independently review the transcripts in your case to determine if there are issues which possibly have merit. When the court receives a "Wende" brief, it will give you the opportunity to write a letter explaining what unfair things you think happened in your case. If after reviewing the transcripts the court concludes that there are arguable issues, it will ask me to present a written argument on your behalf on those issues. If the court concludes that there are no arguable issues, it will affirm your conviction.

After the Appellant's Opening Brief is filed with the court, the Attorney General, the office which represents the State of California, has thirty days to prepare and file the Respondent's Brief. Usually the Attorney General will request an extension of thirty days to prepare that brief, a request which the Court of Appeal usually grants. Sometimes the Attorney General will request and receive several such extensions.

If it's necessary to respond to the arguments made by the Attorney General, I will file a Reply Brief on your behalf, This brief must be filed within twenty days of the day the Respondent's Brief was filed. I file a reply brief in most cases, but not all.

I will send you copies of all briefs in your case, those which I prepare and the brief prepared by the Attorney General. I will also send you copies of all motions which I file in the court of appeal. Unfortunately, all these documents will be written in English. The court will not pay for a translation of these documents.

Oral Argument

Some time after all the briefs have been filed — normally between four and eight months — I will receive a notice from the court indicating that the court has reviewed the case and that the lawyers can request the opportunity to present oral argument in addition to the written arguments. I will request oral argument if I think it would be advantageous in your case to present an oral argument. If I do not see any advantage, I will not ask for that opportunity.

If there is an oral argument, I and an attorney from the Attorney General's office will appear before three judges of the court of appeal in San Jose to argue the case. The argument is short, almost always less than half an hour. The argument is based solely on the transcripts on appeal and the legal points contained in the briefs. Witnesses are not permitted, and the court will not consider any new evidence. If you are in custody, you will not be brought to the court for the argument. If you are out of custody, you can come to listen to the argument, but you are not permitted to participate.

The Court's Opinion

Within ninety days of oral argument, the court of appeal will write an opinion deciding whether your conviction and sentence will be affirmed, reversed, or modified. I will send a copy of the decision to you as soon as I receive it. I have to advise you that less than ten percent of appeals in criminal cases result in the total reversal of convictions. In a few more cases the sentence will be modified or some of the convictions will be reversed. Even if the result is not a total reversal, a modification of the sentence can have a great affect by reducing the time you have to serve in prison..

Further Review

When I receive the court's opinion, I will immediately read it carefully to determine whether there is any basis for taking further steps in your appeal. If I conclude there is nothing more which can be done, I will promptly notify you and send you the transcripts in your case. If you want, you can pursue measures on your own. If you want to pursue other measures, you have to do them within the time limits discussed here.

If I decide the court of appeal reached an incorrect decision, there are two courses of action we can take. First, I can file a Petition for Rehearing in the court of appeal, in which the court is asked to reverse its decision because the opinion contains a material legal error. The Petition for Rehearing must be filed within fifteen days of the filing of the court's opinion. The Court of Appeal has another fifteen days to decide whether to grant a rehearing, something which rarely occurs. If the court does not grant rehearing, the court's opinion becomes final after 30 days.

Once the opinion of the Court of Appeal becomes final, the second option in your case is to file a Petition for Review in the California Supreme Court. This petition must be filed within ten days after the opinion of the Court of Appeal becomes final (that is, within forty days afer the court's opinion was filed). I would only take this action if I think there are issues in your case of statewide importance, or if there is an issue which affects your federal constitutional rights. If there is an argument which affects your federal constitutional rights, I will present it in a petition for review to preserve the opportunity of presenting that argument in federal court.

Once review in the California courts is finished, it is possible to seek review in the federal courts. First, you can send a Petition for Certiorari to the United States Supreme Court. This petition must be filed within ninety days of the date the state supreme court denied the Petition for Review. The second option is to prepare a habeas corpus petition to present in federal district court. A habeas corpus petition must be filed within one year plus ninety days of the date the state supreme court denied the Petition for Review. In most cases, it is not worth the effort to present a Petition for Certiorari to the United States Supreme Court, because such petitions are rarely granted. If there is an argument which involves your federal constitutional rights, the most common option is to prepare a petition for habeas corpus to present in the federal district court. Ordinarily I do not represent clients who pursue their cases in the federal courts. If we lose in the state courts and you want to pursue your case in federal court, we can then discuss what must be done.

Conclusion

I appreciate the opportunity to represent you on your appeal. For my part, I will do everything possible to provide you with excellent representation. If you will cooperate with me in the presentation of your appeal, together we will do the est we can in your case.