Criminal appeals
John Derrick current only handles criminal appeals when appointed by the Court of Appeal to do so and does not take private clients in criminal cases. However, to help those wanting to learn about it, the following is an overview of the felony appeals process in California state court. (Federal criminal appeals follow a different — though comparable — procedural track. Misdemeanor appeals are also different, as they are heard at the Superior Court level.)
An appeal — criminal or civil — is not a new trial. The purpose of an appeal is to review the trial court proceedings to see if the law was followed.
An appeal deals only with issues shown in the transcripts (also known as the “record”). The transcripts include: (1) The papers in the trial court files; (2) a court reporter’s word-for-word record of what happened in the courtroom. The Court of Appeal does not hear witnesses or take new evidence.
The Court of Appeal has no power to decide questions of fact, such as whether a certain witness was lying. It doesn’t pronounce on whether a defendant is “guilty” or “innocent.” It has no power to decide what sentence someone should actually get (as opposed to whether there was an error in the sentence that they did get). Such decisions are made only by the jury or trial judge.
Instead, the Court of Appeal deals with legal questions. It decides whether the trial court proceedings followed the law. For example, it might decide whether certain evidence was correctly admitted, or whether the jury was properly instructed, or whether the trial judge gave adequate reasons for choosing a particular sentence, or whether there were errors in sentencing, or other similar issues.
If the Court of Appeal finds that the proceedings were conducted correctly, the judgment is “affirmed,” which means that the conviction and sentence will not change.
Even if the Court of Appeal finds that a legal error was made by the trial court, the judgment will be affirmed unless the court finds “prejudice” — which means that the error was significant enough that there is an adequate possibility that it made a difference in the outcome.
If there is both “error” and “prejudice,” a case will be “reversed” (in part or in full) and sent back to the trial court for a new trial, a new sentencing hearing, or some other proceeding to correct the error. In some cases, the decision by the Court of Appeal effectively determines the final outcome (even though the case still has to go back to the trial court), but in others it leaves this open depending on what happens next back in the trial court.
The criminal appeal process
Most criminal appeals take about a year from the time the notice of appeal is filed to the time the decision of the Court of Appeal becomes final. That said, a case may be shorter or longer, depending on how long the transcripts are, the number and complexity of issues raised, and other factors. The usual steps in a criminal appeal are these:
(1) Preparation of the transcripts: After a notice of appeal is filed, the trial court clerk and court reporter begin preparing the transcripts in the case. Preparation of the transcripts can take anywhere from less than a month to over six months, depending on factors such as the length of the trial.
(2) Appellant’s opening brief: The written briefs are by far the most important part of the appeals process. The first brief is the appellant’s opening brief. (The party bringing the appeal is known as the “appellant.”) The first section of this brief is the “statement of the case,” which summarizes the procedural history. Next is the “statement of facts,” which summarizes the evidence in the case. On appeal, the evidence is evaluated in the light most favorable to the judgment. That is followed by the “argument.” This is the section of the brief where the appellate lawyer argues that the trial court proceedings did not follow the law and, thus, that the defendant should be given a new trial or sentencing hearing or other appropriate relief. The opening brief is due 40 days after the transcripts are filed. In most cases, however, one or more 30-day extensions of time are needed.
(3) Respondent’s brief: After the appellant’s opening brief is filed, the Attorney General will answer by filing a “respondent’s brief.” Typically, this brief is filed two or three months after the appellant’s opening brief. Some common arguments made in this brief are: The appellant’s issues are waived because they were not raised at trial; there was no error; and if there was error, the error was harmless. This brief is just prosecution’s argument; it is not the Court of Appeal’s decision.
(4) Appellant’s reply brief: In this brief, the appellant’s lawyer can reply to the arguments made in the respondent’s brief. It is due 20 days after the Attorney General’s brief is filed. A reply brief is optional. Every issue doesn’t have to be discussed and in some appeals, it is not filed at all. It is filed when it is necessary to add to the arguments in the opening brief.
(5) Oral argument: At some time after all the briefs are filed, the court asks the parties if they wish to have oral argument. If oral argument takes place, it is typically about three or four months after the reply brief was filed, although the wait can be longer or shorter. At oral argument, the lawyers for both sides go to the court and argue in person. Each side typically argues for less than 15 minutes — sometimes less than five. The appellant generally is not present (and will certainly not be present if in custody). Oral argument is not held in many cases — it is really only necessary if there is something that should be said that was not already said in the briefs. Even when it takes place, it is much less important than the written briefs in terms of the impact it typically has on the court’s decision.
(6) The opinion: The Court of Appeal decides the issues in a written “opinion,” which explains its decisions. Three judges review the case and discuss the issues. Then they vote. At least two judges must vote the same way to reach a decision. One of the judges then writes the opinion for the Court or for the “majority” in the event of disagreement. Occasionally, another judge may write a separate opinion if he or she disagrees with the majority. The opinion is filed after oral argument is held or waived. This may take anything from only a few days to as much as three months.
(7) Petition for rehearing: Within 15 days after the opinion is filed, either party may file a petition for rehearing, which asks the court to reconsider its decision. However, the grounds for such a petition are narrow — it’s not simply an opportunity to reopen the arguments on which the court has already ruled. Few such petitions are filed and very few are granted.
(8) Petition for review in the California Supreme Court: Within 40 days after the opinion is filed, either party may file a petition for review in the California Supreme Court. The Supreme Court picks and chooses which cases to hear. It primarily takes ones that present important issues of law or a conflict in the decisions of different Courts of Appeal. Petitions for review are not filed in every case. Very few are granted. Even if a petition is not granted, this doesn’t mean that the court will rule in the petitioning party’s favor. It just means that it will consider the appeal on the merits.
An appeal — criminal or civil — is not a new trial. The purpose of an appeal is to review the trial court proceedings to see if the law was followed.
An appeal deals only with issues shown in the transcripts (also known as the “record”). The transcripts include: (1) The papers in the trial court files; (2) a court reporter’s word-for-word record of what happened in the courtroom. The Court of Appeal does not hear witnesses or take new evidence.
The Court of Appeal has no power to decide questions of fact, such as whether a certain witness was lying. It doesn’t pronounce on whether a defendant is “guilty” or “innocent.” It has no power to decide what sentence someone should actually get (as opposed to whether there was an error in the sentence that they did get). Such decisions are made only by the jury or trial judge.
Instead, the Court of Appeal deals with legal questions. It decides whether the trial court proceedings followed the law. For example, it might decide whether certain evidence was correctly admitted, or whether the jury was properly instructed, or whether the trial judge gave adequate reasons for choosing a particular sentence, or whether there were errors in sentencing, or other similar issues.
If the Court of Appeal finds that the proceedings were conducted correctly, the judgment is “affirmed,” which means that the conviction and sentence will not change.
Even if the Court of Appeal finds that a legal error was made by the trial court, the judgment will be affirmed unless the court finds “prejudice” — which means that the error was significant enough that there is an adequate possibility that it made a difference in the outcome.
If there is both “error” and “prejudice,” a case will be “reversed” (in part or in full) and sent back to the trial court for a new trial, a new sentencing hearing, or some other proceeding to correct the error. In some cases, the decision by the Court of Appeal effectively determines the final outcome (even though the case still has to go back to the trial court), but in others it leaves this open depending on what happens next back in the trial court.
The criminal appeal process
Most criminal appeals take about a year from the time the notice of appeal is filed to the time the decision of the Court of Appeal becomes final. That said, a case may be shorter or longer, depending on how long the transcripts are, the number and complexity of issues raised, and other factors. The usual steps in a criminal appeal are these:
(1) Preparation of the transcripts: After a notice of appeal is filed, the trial court clerk and court reporter begin preparing the transcripts in the case. Preparation of the transcripts can take anywhere from less than a month to over six months, depending on factors such as the length of the trial.
(2) Appellant’s opening brief: The written briefs are by far the most important part of the appeals process. The first brief is the appellant’s opening brief. (The party bringing the appeal is known as the “appellant.”) The first section of this brief is the “statement of the case,” which summarizes the procedural history. Next is the “statement of facts,” which summarizes the evidence in the case. On appeal, the evidence is evaluated in the light most favorable to the judgment. That is followed by the “argument.” This is the section of the brief where the appellate lawyer argues that the trial court proceedings did not follow the law and, thus, that the defendant should be given a new trial or sentencing hearing or other appropriate relief. The opening brief is due 40 days after the transcripts are filed. In most cases, however, one or more 30-day extensions of time are needed.
(3) Respondent’s brief: After the appellant’s opening brief is filed, the Attorney General will answer by filing a “respondent’s brief.” Typically, this brief is filed two or three months after the appellant’s opening brief. Some common arguments made in this brief are: The appellant’s issues are waived because they were not raised at trial; there was no error; and if there was error, the error was harmless. This brief is just prosecution’s argument; it is not the Court of Appeal’s decision.
(4) Appellant’s reply brief: In this brief, the appellant’s lawyer can reply to the arguments made in the respondent’s brief. It is due 20 days after the Attorney General’s brief is filed. A reply brief is optional. Every issue doesn’t have to be discussed and in some appeals, it is not filed at all. It is filed when it is necessary to add to the arguments in the opening brief.
(5) Oral argument: At some time after all the briefs are filed, the court asks the parties if they wish to have oral argument. If oral argument takes place, it is typically about three or four months after the reply brief was filed, although the wait can be longer or shorter. At oral argument, the lawyers for both sides go to the court and argue in person. Each side typically argues for less than 15 minutes — sometimes less than five. The appellant generally is not present (and will certainly not be present if in custody). Oral argument is not held in many cases — it is really only necessary if there is something that should be said that was not already said in the briefs. Even when it takes place, it is much less important than the written briefs in terms of the impact it typically has on the court’s decision.
(6) The opinion: The Court of Appeal decides the issues in a written “opinion,” which explains its decisions. Three judges review the case and discuss the issues. Then they vote. At least two judges must vote the same way to reach a decision. One of the judges then writes the opinion for the Court or for the “majority” in the event of disagreement. Occasionally, another judge may write a separate opinion if he or she disagrees with the majority. The opinion is filed after oral argument is held or waived. This may take anything from only a few days to as much as three months.
(7) Petition for rehearing: Within 15 days after the opinion is filed, either party may file a petition for rehearing, which asks the court to reconsider its decision. However, the grounds for such a petition are narrow — it’s not simply an opportunity to reopen the arguments on which the court has already ruled. Few such petitions are filed and very few are granted.
(8) Petition for review in the California Supreme Court: Within 40 days after the opinion is filed, either party may file a petition for review in the California Supreme Court. The Supreme Court picks and chooses which cases to hear. It primarily takes ones that present important issues of law or a conflict in the decisions of different Courts of Appeal. Petitions for review are not filed in every case. Very few are granted. Even if a petition is not granted, this doesn’t mean that the court will rule in the petitioning party’s favor. It just means that it will consider the appeal on the merits.