Appeals

This page examines the various options you may have if you have been convicted of a criminal offense.  In summary, your options are:

 

  1. Motion for New Trial
  2. Direct Appeal
  3. Habeas Corpus

1 – MOTION FOR NEW TRIAL

 

In California, a motion for new trial is governed by California Penal code section 1181. It reads: When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only:

 

When the trial has been had in his absence except in cases where the trial may lawfully proceed in his absence;

 

When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property;

 

When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented;

 

When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors;

 

When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury;

 

When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed;

 

When the verdict or finding is contrary to law or evidence, but in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court towhich the case may be appealed;

 

When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.

 

When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.

 

When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.

 

The ground for the motion are in the statute and include:

 

Irregularity in the proceedings of the court, jury or adverseparty, or any order of the court or abuse of discretion by whicheither party was prevented from having a fair trial.

 

Misconduct of the jury; and whenever any one or more of thejurors have been induced to assent to any general or special verdict,or to a finding on any question submitted to them by the court, by aresort to the determination of chance, such misconduct may be provedby the affidavit of any one of the jurors.

 

Accident or surprise, which ordinary prudence could not have guarded against.

 

Newly discovered evidence, material for the party making theapplication, which he could not, with reasonable diligence, havediscovered and produced at the trial.

 

Excessive or inadequate damages.

 

Insufficiency of the evidence to justify the verdict or otherdecision, or the verdict or other decision is against law.

 

Error in law, occurring at the trial and excepted to by theparty making the application.

 

2 – DIRECT APPEALS

 

Upon any conviction or even a Guilty Plea, be sure you preserve your appellate rights by filing a notice of appeal.

  • For misdemeanor cases, you must file a Notice of Appeal  within 30 days of the date of the judgment or order.
  • For felony cases, you must file a Notice of Appeal —within 60 days of the date of the judgment or order.

 

An appeal is not a new trial.  For the most part, the appeals court can’t reexamine the facts presented to the jury or decide that a certain witness was not credible.  That is the job for the jury. The appellate court can and will reexamine review the evidence and decide whether there were LEGAL errors in the administration of the trial or whether there was sufficient evidence presented for the guilty verdict.

 

You can also appeal the validity of a plea bargain on basis such as advice of counsel and other unexpected collateral

 

3 – HABEAS CORPUS

 

The remedy of Habeas corpus is governed by California Penal code  section 1473 and requires that the PERSON is in some custodial status.  It is usually sufficient that the person is on Probation even if not in custody.

 

The ground for this remedy include:

 

(1) False evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at a hearing or trial relating to his or her incarceration.

(2) False physical evidence, believed by a person to be factual, probative, or material on the issue of guilt, which was known by the person at the time of entering a plea of guilty, which was a material factor directly related to the plea of guilty by the person.

 

WHAT CAN BE APPEALED?

 

Guilty Verdicts

 

Sentencing The court may decide to uphold the actual conviction but still review the sentence imposed. For example, an appellate court might uphold a conviction but reduce the sentence by several years  if the trial judge made an error in sentencing after the guilty verdict.

 

Guilty Pleas

Defendants who plead guilty can appeal. But the grounds for appeal are more limited. For example, a immigrant can appeal his conviction  and his conviction will be set aside if his attorney failed to advise him of the effect of a guilty plea on his immigration status. (Padilla v. Kentucky, 559 U.S. 356 (2010).)

 

Another remedy in this instance would be a motion to withdraw the plea under penal code 1018 due to errors such as failure of advisement or errors in sentencing transcripts.

 

 

 

If you’ve been convicted of a crime and want to challenge the conviction or sentence, consult an experienced criminal appellate lawyer. Appellate lawyers have special expertise regarding the appeals process and can provide a neutral analysis of your chances.