Playlist: What is a misdemeanor?
Unfortunately, there are times when our California criminal justice system simply doesn’t achieve justice. Judges make mistakes. Juries get it wrong. Attorneys act unethically or don’t exercise competence. Fortunately, when these types of injustices occur, California law allows you to appeal. And that’s where we come in.
We know how to scour the record to identify the problems and mistakes that could lead to a successful appeal and a reversal of the outcome in court. But the timeframe in which to file a California criminal appeal is always short.
In the article below, our criminal appellate lawyers explain California’s misdemeanor appeals process by addressing the following:
- 1. A Brief Overview of California Appellate Law
- 2. Misdemeanor Appeals in California
- 3. When to File Misdemeanor Appeals
- 4. Transferring Misdemeanor Appeals to a Higher Court
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The rules and regulations that govern California misdemeanor appeals are specific and must be adhered to with strict compliance.
1. A Brief Overview of California Appellate Law
Let’s start off with the basics. An appeal is a request for a higher court (that is, an appellate court) to review a decision of a lower court (that is, the superior court, commonly referred to as the trial court).
An appeal is not a new trial. When a higher court reviews a lower court’s decision, it reviews the record of what happened in the bench or jury trial to determine if there were legal errors that substantially affected the rights of either party. The higher court cannot review new evidence.
- The party appealing — which is typically the defendant — is referred to as the “appellant“.
- The party opposing the appeal — which is usually the prosecution — is referred to as the “respondent“.
For more information about the types of legal errors and issues that are appropriate grounds for appellate consideration, please review our article on Grounds on Which to Appeal a Criminal Conviction in California.
It is also important to understand that only the actual defendant (or an attorney on a defendant’s behalf) may file an appeal. This means that you cannot file an appeal on behalf of a family member, a friend, or anyone else who you personally believe was injured by an unjust criminal conviction.1
2. Misdemeanor Appeals in California
As California misdemeanor appellate lawyer John Murray2 explains,
“Misdemeanor appeals are processed a bit differently in California than felony appeals. For starters, you file a misdemeanor appeal with the “Appellate Division of the Superior Court of California”.3 You file felony appeals with the California Court of Appeal, not the California Supreme Court.”4
For appellate purposes, a misdemeanor appeal refers to any case where the defendant was prosecuted originally for only a misdemeanor (or a misdemeanor and an infraction) but not a felony.5
This means that even if the prosecutor charged you with a felony in addition to a misdemeanor. But you were only convicted of the misdemeanor, your case will still be considered a felony case for appellate purposes.
Similarly, if you are charged with a felony wobbler. A “wobbler” is an offense that the prosecutor may file as either a misdemeanor or a felony, depending on
- the facts of the case, and
- your criminal history
and the offense is at some point deemed to be a misdemeanor, the case is still considered a felony for appellate purposes.6
The bottom line is that California appellate law considers a case a felony case if a felony was charged regardless of the outcome of the case.7
3. When to File Misdemeanor Appeals
With little exception, you must file the applicable appeal forms with the Appellate Division of the Superior Court within 30 days of the judgment or order that you are appealing. A late application will not be permitted.8 For more information on the appeal process, please review our article on California’s Appeal Process.
Filing your notice of appeal doesn’t automatically put your sentence on hold. If you were sentenced to serve time in jail, you may ask the trial court either to set bail or release you pending your appeal. If the court denies your request or sets bail in a higher amount than you believe is fair, you can appeal those issues to the Appellate Division as well.
And if you wish to postpone your other probation obligations such as fines, community service, etc., you must ask the court to grant you a “stay”. If you can prove that the court unjustifiably denied your request for a stay, you can also appeal that decision to the Appellate Division.
If the trial court denies your request — and you choose not to fulfill your court obligations — the court could issue a bench warrant for your arrest and charge you with a probation violation.9
3.1. The trial record
If you want the Appellate Division to consider legal issues that were raised during the trial proceedings (which is generally the case) you will need to provide the Division with a record of those proceedings. “Records” include
- a reporter’s transcript (available when a court reporter was present during the trial and made a record of the oral proceedings),
- an official electronic recording (or a transcript of that recording), or
- a statement on appeal (this is a summary of the proceedings which you prepare that must be approved by the trial court judge who conducted those proceedings. The rules and regulations that govern statements on appeal are quite strict and require strict compliance).10
All written documents that were filed in your case (“clerk’s transcript“), as well as any exhibits that you would like the Appellate Division to review, must also be sent to that Division.
And as the appellant, you are responsible for paying any costs associated with obtaining these records. However, if the court believes that you are unable to pay, it may waive your fees.
4. Transferring Misdemeanor Appeals to a Higher Court
In rare cases, a misdemeanor appeal may be transferred from the Appellate Division of the Superior Court to the Court of Appeal. If you believe that the Appellate Division was unable to
- secure uniformity of decision, or
- settle an important question of law,
you can apply to have the case transferred. You must do so within 15 days of the Appellate Division’s decision.11
Similarly, the Court of Appeal may order the transfer of the case on its own motion as well. If the Court of Appeal specifies which issue/issues it desires to resolve, the parties must limit their arguments to those issues and to any issues fairly included within those issues.12
The rules and regulations that govern California misdemeanor appeals are specific and must be adhered to with strict compliance. And although it is not necessary to hire an attorney, if you choose to represent yourself, you will be held to the same standards as an attorney. Even though these rules are technical and complex.
This is merely one reason why it is highly advisable to seek representation from a skilled California criminal appellate attorney or lawyer who is readily familiar with these protocols and procedures.
Contact our law firm for a free consultation
If you or a loved one is in need of help with appeals and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Legal References:
- Our California criminal appellate attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California misdemeanor appellate lawyer John Murray represents clients seeking appeals in the South Bay (including Long Beach and Torrance) as well as throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster.
- California Penal Code 1466 — An appeal may be taken from a judgment or order, in an infraction or misdemeanor case, [that is, a California misdemeanor appeal] to the appellate division of the superior court of the county in which the court from which the appeal is taken is located, in the following cases: (1) By the people: (A) From an order recusing the district attorney or city attorney pursuant to Section 1424. (B) From an order or judgment dismissing or otherwise terminating all or any portion of the action, including such an order or judgment, entered after a verdict or finding of guilty or a verdict or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy. (C) From sustaining a demurrer to any portion of the complaint or pleading. (D) From an order granting a new trial. (E) From an order arresting judgment. (F) From any order made after judgment affecting the substantial rights of the people. (G) From the imposition of an unlawful sentence, whether or not the court suspends the execution of sentence. As used in this subparagraph, “unlawful sentence” means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court that strikes or otherwise modifies the effect of an enhancement or prior conviction. A defendant shall have the right to counsel in the people’s appeal of an unlawful sentence under the same circumstances that he or she would have a right to counsel under subdivision (a) of Section 1238. (H) Nothing in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition that is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation. (2) By the defendant: (A) From a final judgment of conviction. A sentence, an order granting probation, a conviction in a case in which before final judgment the defendant is committed for insanity or is given an indeterminate commitment as a mentally disordered sex offender, or the conviction of a defendant committed for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment or an order granting probation the court may review any order denying a motion for a new trial. (B) From any order made after judgment affecting his or her substantial rights.”)
- California Penal Code 1235, subdivision (b) — Questions of law alone; appeal by either party; application of title. (“(a) Either party to a felony case may appeal on questions of law alone, as prescribed in this title and in rules adopted by the Judicial Council. The provisions of this title apply only to such appeals. (b) An appeal from the judgment or appealable order in a felony case is to the court of appeal for the district in which the court from which the appeal is taken is located.”)
- California Penal Code 691, subdivision (g) — Words and phrases. (“The following words have in Part 2 (commencing with Section 681) the signification attached to them in this section, unless it is otherwise apparent from the context: (a) The words “competent court” when used with reference to the jurisdiction over any public offense, mean any court the subject matter jurisdiction of which includes the offense so mentioned. (b) The words “jurisdictional territory” when used with reference to a court, mean the city and county, county, city, township, or other limited territory over which the criminal jurisdiction of the court extends, as provided by law, and in case of a superior court mean the county in which the court sits. (c) The words “accusatory pleading” include an indictment, an information, an accusation, and a complaint. (d) The words “prosecuting attorney” include any attorney, whether designated as district attorney, city attorney, city prosecutor, prosecuting attorney, or by any other title, having by law the right or duty to prosecute, on behalf of the people, any charge of a public offense. (e) The word “county” includes county, city and county, and city. (f) “Felony case” means a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony. (g) “Misdemeanor or infraction case” means a criminal action in which a misdemeanor or infraction is charged and does not include a criminal action in which a felony is charged in conjunction with a misdemeanor or infraction [italics added].”)
- See same, subdivision (f). (“(f) “Felony case” means a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony.”) This means that a California misdemeanor appeal is one that never involved a felony charge.
- California Rules of Court, Title 8, Division 1, Chapter 3, Article 1, Rule 8.304, subdivision (a)(2) — Filing the appeal; certificate of probable cause. (“(a) Notice of appeal (1) To appeal from a judgment or an appealable order of the superior court in a felony case-other than a judgment imposing a sentence of death-the defendant or the People must file a notice of appeal in that superior court. To appeal after a plea of guilty or nolo contendere [“no contest”] or after an admission of probation violation, the defendant must also comply with (b). (2) As used in (1), “felony case” means any criminal action in which a felony is charged, regardless of the outcome. A felony is “charged” when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a. A felony case includes an action in which the defendant is charged with: (A) A felony and a misdemeanor or infraction, but is convicted of only the misdemeanor or infraction; (B) A felony, but is convicted of only a lesser offense; or (C) An offense filed as a felony but punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under Penal Code section 17(b)[italics added]. (3) If the defendant appeals, the defendant or the defendant’s attorney must sign the notice of appeal. If the People appeal, the attorney for the People must sign the notice. (4) The notice of appeal must be liberally construed. Except as provided in (b), the notice is sufficient if it identifies the particular judgment or order being appealed. The notice need not specify the court to which the appeal is taken; the appeal will be treated as taken to the Court of Appeal for the district in which the superior court is located. (b) Appeal after plea of guilty or nolo contendere [“no contest”] or after admission of probation violation (1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court-with the notice of appeal required by (a)-the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. (2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate. (3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal “Inoperative,” notify the defendant, and send a copy of the marked notice of appeal to the district appellate project. (4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or (B) Grounds that arose after entry of the plea and do not affect the plea’s validity. (5) If the defendant’s notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1). (c) Notification of the appeal (1) When a notice of appeal is filed, the superior court clerk must promptly mail a notification of the filing to the attorney of record for each party, to any unrepresented defendant, to the reviewing court clerk, to each court reporter, and to any primary reporter or reporting supervisor. If the defendant also files a statement under (b)(1), the clerk must not mail the notification unless the superior court files a certificate under (b)(2). (2) The notification must show the date it was mailed, the number and title of the case, and the dates the notice of appeal and any certificate under (b)(2) were filed. If the information is available, the notification must also include: (A) The name, address, telephone number, and California State Bar number of each attorney of record in the case; (B) The name of the party each attorney represented in the superior court; and (C) The name, address, and telephone number of any unrepresented defendant. (3) The notification to the reviewing court clerk must also include a copy of the notice of appeal, any certificate filed under (b), and the sequential list of reporters made under rule 2.950. (4) A copy of the notice of appeal is sufficient notification under (1) if the required information is on the copy or is added by the superior court clerk. (5) The mailing of a notification under (1) is a sufficient performance of the clerk’s duty despite the discharge, disqualification, suspension, disbarment, or death of the attorney. (6) Failure to comply with any provision of this subdivision does not affect the validity of the notice of appeal.”)
- California Rules of Court Title 8, Division 2, Chapter 3, Article 1, Rule 8.853, subdivision (b) — Time to appeal. (“(a) Normal time A notice of [a California misdemeanor] appeal must be filed within 30 days after the rendition of the judgment or the making of the order being appealed. If the defendant is committed before final judgment for insanity or narcotics addiction, the notice of appeal must be filed within 30 days after the commitment. (b) Cross-appeal If the defendant or the People timely appeal from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is either the time specified in (a) or 15 days after the trial court clerk mails notification of the first appeal, whichever is later. (c) Premature notice of appeal A notice of appeal filed before the judgment is rendered or the order is made is premature, but the appellate division may treat the notice as filed immediately after the rendition of the judgment or the making of the order. (d) Late notice of appeal The trial court clerk must mark a late notice of appeal “Received [date] but not filed” and notify the party that the notice was not filed because it was late.”)
- Misdemeanor Appeal Booklet, State of California, County of Orange, page 3. (“If you want a stay, you must first ask the trial court for a stay. You can also apply to the appellate division for a stay, but you must show in your application to appellate division that you first asked the trial court a stay and that the trial court unjustifiably denied your request. If you do not get a stay and you do not pay your fine or complete another part of your punishment by the date ordered by the court, a warrant may be issued for your arrest or a civil collections process may be started against you, which could result in a civil penalty being added to your fine.”) Disobeying a court order to fulfill your probation obligations may result in a probation violation hearing.
- See California Rules of Court Title 8, Chapter 3, Article 2, Rules 8.860 – 8.873. See specifically Rule 8.869. Statement on appeal (a) Description A statement on appeal [which may be used as the trial record in a California misdemeanor appeal] is a summary of the trial court proceedings that is approved by the trial court. An appellant can elect under rule 8.864 to use a statement on appeal as the record of the oral proceedings in the trial court, replacing the reporter’s transcript. (b) Preparing the proposed statement (1) If the appellant elects under rule 8.864 to use a statement on appeal, the appellant must prepare, serve, and file a proposed statement within 20 days after filing the record preparation election. (2) Appellants who are not represented by an attorney must file their proposed statement on Proposed Statement on Appeal (Misdemeanor) (form CR-135). For good cause, the court may permit the filing of a statement that is not on form CR-135. (3) If the appellant does not file a proposed statement within the time specified in (1), the trial court clerk must promptly notify the appellant by mail that the proposed statement must be filed within 15 days after the notice is mailed and that failure to comply will result in the appeal being dismissed. (c) Contents of the proposed statement on appeal A proposed statement prepared by the appellant must contain: (1) A condensed narrative of the oral proceedings that the appellant believes necessary for the appeal and a summary of the trial court’s holding and the sentence imposed on the defendant. Subject to the court’s approval, the appellant may present some or all of the evidence by question and answer; and (2) A statement of the points the appellant is raising on appeal. The appeal is then limited to those points unless the appellate division determines that the record permits the full consideration of another point. (A) The statement must specify the intended grounds of appeal by clearly stating each point to be raised but need not identify each particular ruling or matter to be challenged. (B) The statement must include as much of the evidence or proceeding as necessary to support the stated grounds. Any evidence or portion of a proceeding not included will be presumed to support the judgment or order appealed from. (C) If one of the grounds of [the California misdemeanor] appeal is insufficiency of the evidence, the statement must specify how it is insufficient. (D) If one of the grounds of appeal challenges the giving, refusal, or modification of a jury instruction, the statement must include any instructions submitted orally and identify the party that requested the instruction and any modification. (d) Review of the appellant’s proposed statement (1) Within 10 days after the appellant files the proposed statement, the respondent may serve and file proposed amendments to that statement. (2) No later than 10 days after either the respondent files proposed amendments or the time to do so expires, a party may request a hearing to review and correct the proposed statement. No hearing will be held unless ordered by the trial court judge, and the judge will not ordinarily order a hearing unless there is a factual dispute about a material aspect of the trial court proceedings. (3) If a hearing is ordered, the court must promptly set the hearing date and provide the parties with at least 5 days’ written notice. (4) Except as provided in (6), if no hearing is ordered, no later than 10 days after the time for requesting a hearing expires, the trial court judge must review the proposed statement and any proposed amendments and make any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the trial court proceedings. If a hearing is ordered, the trial court judge must make any corrections or modifications to the statement within 10 days after the hearing. (5) The trial court judge must not eliminate the appellant’s specification of grounds of appeal from the proposed statement. (6) If the trial court proceedings were reported by a court reporter or officially recorded electronically under Government Code section 69957 and the trial court judge determines that it would save court time and resources, instead of correcting a proposed statement on appeal: (A) If the court has a local rule for the appellate division permitting the use of an official electronic recording as the record of the oral proceedings, the trial court judge may order that the original of an official electronic recording of the trial court proceedings, or a copy made by the court, be transmitted as the record of these oral proceedings without being transcribed. The court will pay for any copy of the official electronic recording ordered under this subdivision; or (B) Unless the court has a local rule providing otherwise, the trial court judge may order that a transcript be prepared as the record of the oral proceedings. The court will pay for any transcript ordered under this subdivision. (e) Review of the corrected statement (1) If the trial court judge makes any corrections or modifications to the statement under (d), the clerk must send copies of the corrected or modified statement to the parties. (2) Within 10 days after the statement is sent to the parties, any party may serve and file proposed modifications or objections to the statement. (f) Certification of the statement on appeal (1) If the trial court judge does not make any corrections or modifications to the proposed statement under (d)(4) and does not order either the use of an official electronic recording or preparation of a transcript in lieu of correcting the proposed statement under (d)(6), the judge must promptly certify the statement. (2) If the trial court judge corrects or modifies an appellant’s proposed statement under (d), within five days after the time for filing proposed modifications or objections under (e) has expired, the judge must review any proposed modifications or objections to the statement filed by the parties, make any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the trial court proceedings, and certify the statement. (g) Extensions of time For good cause, the trial court may grant an extension of not more than 15 days to do any act required or permitted under this rule.”)
- California Rules of Court, Title 8, Division 4, Rule 8.1005 — Certification. (“(a) Authority to certify (1) The appellate division may certify a case [that is, a California misdemeanor appeal] for transfer to the Court of Appeal on its own motion or on a party’s application. (2) A case may be certified by a majority of the appellate division judges to whom the case has been assigned or who decided the appeal or, if the case has not yet been assigned, by any two appellate division judges. If an assigned or deciding judge is unable to act on the certification, a judge designated or assigned to the appellate division by the chair of the Judicial Council may act in that judge’s place. (b) Application for certification (1) A party may serve and file an application for certification at any time after the record on appeal is filed in the appellate division and within 15 days after judgment is pronounced or a modification order changing the appellate judgment is filed. The party may include the application in a petition for rehearing. (2) The application must explain why transfer is necessary to secure uniformity of decision or to settle an important question of law. (3) Within five days after the application is filed, any other party may serve and file an opposition. (4) No hearing will be held on the application. Failure to certify the case is deemed a denial of the application. (c) Finality of appellate division judgments An appellate division judgment is final in that court as provided in rule 8.888. (d) Time to certify A case may be certified at any time after the record on appeal is filed in the appellate division and before the appellate division judgment is final in that court. (e) Contents of certification A certification must: (1) Briefly describe any conflict of decision-citing the decisions creating the conflict-or important question of law to be settled; and (2) State whether there was a judgment on appeal and, if so, its date and disposition. (f) Superior court clerk’s duties (1) If the appellate division orders certification, the clerk must promptly send a copy of the order to the Court of Appeal clerk, the parties, and, in a criminal case, the Attorney General. (2) If the appellate division denies an application by order, the clerk must promptly send a copy to the parties.”)
- California Rules of Court, Title 8, Division 4, Rule 8.1008 — Transfer. (“(a) Authority to transfer on Court of Appeal’s own motion or a party’s petition The Court of Appeal may order transfer of a case [that is, a California misdemeanor appeal] on the court’s own motion or on a party’s petition to transfer. (b) Petition to transfer (1) If the appellate division denies an application for certification and does not certify its opinion for publication, a party may serve and file in the Court of Appeal a petition to transfer the case to that court. (2) The petition must be served and filed within 15 days after the appellate division judgment is final in that court and must show delivery of a copy to the appellate division. (3) The petition must explain why transfer is necessary to secure uniformity of opinion or to settle an important question of law. (4) A party must not file an answer to a petition for transfer unless the court requests an answer. The clerk must promptly send to the parties copies of any order requesting an answer and immediately notify the parties by telephone or another expeditious method. Any answer must be served and filed within 10 days after the order is filed unless the court orders otherwise. A petition for transfer normally will not be granted unless the court has requested an answer. (5) The petition and any answer must comply as nearly as possible with rule 8.504. (c) Time to transfer (1) The Court of Appeal may order transfer: (A) After certification or on its own motion, within 20 days after the record on transfer is filed in the Court of Appeal; or (B) On petition to transfer, within 20 days after the petition is filed. (2) Within either period specified in (1), the Court of Appeal may order an extension not exceeding 20 days. (3) If the Court of Appeal does not timely order transfer, transfer is deemed denied. (d) Letter supporting or opposing transfer (1) Except when a party files a petition to transfer under (b), any party may send the Court of Appeal a letter supporting or opposing transfer within 10 days after a record on transfer is filed in that court. The letter must be served on all other parties. (2) The letter must be double-spaced and must not exceed 1,400 words if produced on a computer or five pages if typewritten. (e) Limitation of issues (1) On or after ordering transfer, the Court of Appeal may specify the issues to be briefed and argued. Unless the court orders otherwise, the parties must limit their briefs [appellant’s brief / opening brief and respondent’s brief] and arguments to those issues and any issues fairly included in those issues. (2) Notwithstanding an order specifying issues under (1), the court may, on reasonable notice, order oral argument on fewer or additional issues or on the entire case. (f) Court of Appeal clerk’s duties (1) When a transfer order is filed, the clerk must promptly send a copy to the superior court clerk, the parties, and, in a criminal case, the Attorney General. (2) With the copy of the transfer order sent to the parties and the Attorney General, the clerk must send notice of the time to serve and file any briefs ordered under rule 8.1012 and, if specified by the Court of Appeal, the issues to be briefed and argued. (3) If the court denies transfer after certification or petition, the clerk must return the record on transfer and any exhibits to the superior court clerk and promptly send notice of the denial to the parties and, in a criminal case, the Attorney General. (4) Failure to send any order or notice under this subdivision does not affect the jurisdiction of the Court of Appeal.”)