APPEALING A CRIMINAL CONVICTION

IN CALIFORNIA

DOMENIC J. LOMBARDO

Appealing a Criminal Conviction in California Requires You to Navigate a Complex, and Often Confusing, Legal

System that Should Only Be Attempted with the Assistance of an Experienced California Criminal Appeals Attorney

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The goal of the defendant in any criminal prosecution is to be exonerated of all

charges, either through a dismissal of the charges or through a “not guilty”

verdict at trial. Failing to achieve that goal, however, does not mean you have

to give up the fight. In the United States, a defendant has an absolute right to

appeal a guilty verdict. In addition, you may also be entitled to appeal the

sentence you received. Appealing a criminal conviction in California requires

you to navigate a complex, and often confusing, legal system that should only

be attempted with the assistance of an experienced California criminal

appeals attorney. As a defendant though, you should have a basic

understanding of the criminal appeals process.

WHAT AN APPEAL IS – AND IS NOT

Unless you had had reason to go

through the appellate process before

you may have several misconceptions

about what an appeal is and what can

be accomplished through filing an

appeal. First and foremost, an appeal

is not a new trial. As a general rule,

new evidence cannot be admitted on

appeal and you are not allowed to

make new arguments on appeal. The purpose of an appeal is correct errors

made at the trial level. Errors may have been made by the judge, the

prosecutor, or the jury. Your appeal asks a higher court to review the trial

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court record and determine if an error was, indeed made and, if so, if that

error affected the outcome of your case. Not all errors are actionable on

appeal. “Harmless” errors, or errors that did not have an impact on the

outcome, are acceptable. To succeed on appeal you must convince the

appellate court that an error was made that impacted the outcome.

POST-CONVICTION RELIEF VS. APPEALS

After a guilty verdict there are two routs you may be eligible to take to seek

relief from either the verdict or your sentence. Post-conviction relief, or P.C.R.

typically refers to motions filed after trial or after you accepted a guilty plea.

P.C.R. is not the same as an appeal; however, you may be able to

accomplishing many of the same objectives with P.C.R. as you can with an

appeal. Common P.C.R. motions include:

Motion to overturn a conviction based on ineffective assistance of

counsel.

Motion to withdraw a guilty plea

Motion for re-sentencing

ISSUES ON APPEAL

To succeed on appeal you must allege, and prove, that a reversible error

occurred during your trial. Some common appeal issues include:

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Challenges to pre-trial rulings – pre-trial motions are commonly filed

by both sides prior to trial. A pre-trial ruling, therefore, could have

affected the eventual outcome of your case.

Jury misconduct –including anything from improper communications

between a jury member and a witness to outright bribery.

Improperly admitted/excluded evidence – if you believe evidence

was wrongly admitted or excluded by the judge during the course of

your trial it can be used to appeal the verdict.

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Insufficient evidence to sustain the conviction – thought the jury is

charged with reaching a verdict, if the verdict is “guilty” there must be

sufficient evidence to reach that verdict.

Improper jury instructions – the judge reads a set of jury instructions

to the jury members before they are sent off to deliberate. An improper

instruction can be cause for appeal.

Ineffective assistance of counsel –alleges that your attorney did not

perform his or her job properly, resulting in an inadequate defense at

trial.

FILING AN APPEAL IN CALIFORNIA

The first thing you must know about filing an appeal in California is that the

appeal process is time sensitive. There are numerous deadlines involved in

filing an appeal. Missing a deadline could cause you to lose your right to

appellate review.

Notice of Appeal.To begin the appeals process you must file a Notice of

Appeal with the Clerk of the trial court. For a misdemeanor conviction

you have 30 days to file your Notice of Appeal whereas you have 60

days for a felony conviction. Except in rare circumstances, late notices

will not be accepted. The purpose of the Notice of Appeal is to put both

the trial court and the appellate court on notice that an appeal is

forthcoming.

Trial Record. Once the Notice of Appeal is filed the trial court prepare

the trial record to be sent up to the appellate court. The trial record is a

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literal, word for word, record of everything that was said during the

trial. Along with the transcript of the trial, all exhibits introduced at the

trial become part of the record on appeal. The record is sent to the

appropriate appellate court, either the Appellate Division of the

Superior Court or the California Court of Appeals.

Briefs.An appeal is decided largely (or entirely) on the written record

submitted to the appellate court. Along with the trial record, both sides

may file an appellate brief. The defendant’s (appellant’s) brief outlines

the issues on appeal and argues in favor of vacating the verdict based on

those issues.

Oral Argument. Sometimes, the appellate court requests oral

arguments from the parties. This is an opportunity for the court to

question the parties regarding issues on appeal. In addition, it provides

another chance for your attorney to convince the court that your verdict

should be vacated because of errors made during trial.

Decision. The appellate court may affirm the guilty verdict or may

reverse the verdict. If the court affirms the verdict you may appeal that

decision to a higher court. When an appellate court reverses a trial court

verdict the case it usually sent back to the trial court for further

proceedings.

If you were recently convicted at trial of a criminal offense in California you

have a right to appeal that conviction and/or the sentence you received as a

result of that conviction. Though the law guarantees you the right to appeal

the law also limits the time within which you must assert your right. Contact

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an experienced California criminal defense appeals attorney immediately to

find out what options are available to you.

California Courts, How Criminal Cases Work

Justia, Criminal Appeals

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About the Author

Domenic J Lombardo

Domenic J. Lombardo, (Attorney at Law)

graduated from University of California,

Los Angeles (U.C.L.A.), earning a B.A. in

Economics-Business, before graduating

with his J.D. from University of California,

Hastings School of Law. He passed the

California Bar Examination on the first

try, and immediately began practicing as a

criminal defense attorney in San Diego,

California.

Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public

Defender from 1991 to early 1996.

Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as aa sole

practitioner dedicated entirely to the defense of individuals accused of crimes. And

while Mr. Lombardo works as the primary attorney for all his cases, he does have a

team of investigators, forensic consultants, and paralegals to call on to help achieve

the best possible result in every case.

When he is not working, Mr. Lombardo is an avid family man, triathlete, and world

traveler.

The Law Office of Domenic J Lombardo

The Executive Complex 1010 Second Ave., Ste. 1820

San Diego, CA 92101

www.AttorneyLombardo.com