Procedure Archives

The Appeal Process

After the Trial — The Appeal Process

If you are found guilty after a trial, you have the right to an appeal process. There are many reasons for an appeal of a criminal case, but appeals are also very difficult, so talk to a lawyer to make sure you know what is best for you.

There are also important deadlines that apply to appeals. If you miss the deadline, your appeal will most likely be dismissed.

For misdemeanor cases, you must file a Notice of Appeal (Misdemeanor) (Form CR-132) within 30 days of the date of the judgment or order.
For felony cases, you must file a Notice of Appeal — Felony (Defendant) (Form CR-120) within 60 days of the date of the judgment or order.

Keep in mind that the appeal is not a new trial. The appellate court can review the evidence (testimony and exhibits) presented at your trial to see if the trial court made a legal error in how the testimony or exhibits were received. The appellate court does NOT decide the facts of the case as the judge or jury in the trial court does.
You can only appeal if:

If you say there was not enough evidence in your trial to justify the judgment, the appellate court will review the record and decide if there was substantial evidence to support the judgment. If you say mistakes of law were made, the appellate court will hold a hearing to listen to both parties. Then they will decide if there was any irregularity or mistake that prejudiced (hurt) your case.

In addition to appealing after a trial, there are other situations when you can file an appeal, like appealing the validity of a plea or probation violations. Talk to your lawyer to learn more about your options to appeal.

The Verdict

The Trial Ends

If the jury finds the defendant not guilty, it is called an “acquittal” and the defendant will be released. The defendant can never be tried again for the same crime. This is called “double jeopardy.” A finding of not guilty is not the same as a finding of innocence. It simply means that the jury was not convinced that the defendant was guilty beyond a reasonable doubt. The arrest will still show on the defendant’s record, along with the acquittal. If a defendant was wrongfully arrested and charged, and he or she wants to get the arrest removed from her or his record, a hearing to determine the factual innocence of the defendant must be held in front of a judge. It is often much harder to prove factual innocence, than to raise a reasonable doubt about guilt.

If the defendant is found guilty, the defendant will be sentenced.

Setting A Trial Date

For a jury trial for a misdemeanor case: The law says how soon a defendant charged with a misdemeanor must be brought to trial. (See section 1382 of the Penal Code).

If the defendant is in custody at the arraignment, the trial must start within 30 days of arraignment or plea, whichever is later.

If the defendant is not in custody at the arraignment, the trial must start within 45 days of arraignment or plea, whichever is later.

The defendant can “waive” (give up) the right to a speedy trial. This means the defendant agrees to have the trial after the required deadline (also known as “waiving time”). But even if the defendant waives time, the law says the trial must start within 10 days after the trial date is set. It is very important for defendants to get advice from an attorney before they waive time.

For a jury trial for a felony case: The law says how soon a defendant charged with a felony must be brought to trial. (See section 1382 of the Penal Code.)

The prosecutor must file the Information within 15 days of the date the defendant was “held to answer” at the preliminary hearing.

The trial must start within 60 days of the arraignment on the Information.

The defendant can “waive” (give up) the right to a speedy trial. This means he or she agrees to have the trial after the 60-day period (also known as “waiving time”). It is very important for defendants to get advice from an attorney before they “waive time.”

Trial by your Peers

Defendants in criminal cases (other than infractions) have the right to have a jury of their peers decide their guilt or innocence. Therefore, before trial, defendants need to decide whether to have a jury trial (where the jury decides if the defendant is guilty or not) or a court trial (where the judge decides). Usually, defendants choose to have a jury trial because they want a jury of their peers to hear the evidence and decide their guilt. But sometimes there may be circumstances where a defense attorney will recommend a court trial without a jury.

Everyone accused of a crime is legally presumed to be innocent until they are convicted, either by being proved guilty at a trial or by pleading guilty before trial. This means that it is the prosecutor who has to convince the jury that the defendant is guilty and must provide proof of guilt beyond a reasonable doubt. The defendant has the right to remain silent and that silence cannot be used against him or her.

After Your Arraigment

In misdemeanor cases, if the defendant enters a not guilty plea, after the arraignment and before the trial:

The prosecution and the defense exchange information. This is called “discovery.” Defendants may be limited in what information they are able to see, but their lawyers usually are not. This is because lawyers are required by law to protect the identity of witnesses while still preparing a defense so that the witnesses are not put in jeopardy. This is why it is so important that a defendant charged with a misdemeanor or felony be represented by a lawyer.
Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial.
The defendant can change his or her plea to guilty or no contest.
The judge and lawyers from both sides may talk about how the case can be resolved without going to trial.

In felony cases, after the arraignment, if the case does not settle or get dismissed the judge holds a preliminary hearing. At this hearing, the judge will decide if there is enough evidence that the defendant committed the crime to make the defendant have to appear for a trial. If the judge decides that there is enough evidence, the prosecutor will file a document called “the Information.” Then, the defendant will be arraigned, a second time, on the Information. At that time, the defendant will enter a plea and proceed to trial. Before the trial:

The prosecution and the defense exchange information. This is called “discovery.” Defendants may be limited in what information they are able to see, but their lawyers usually are not. This is because lawyers are required by law to protect the identity of witnesses while still preparing a defense so that the witnesses are not put in jeopardy. This is why it is so important that a defendant charged with a misdemeanor or felony be represented by a lawyer.
Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial.
The defendant can change his or her plea to guilty or no contest.
The judge and lawyers from both sides may talk about how the case can be resolved without going to trial.

Arraignment

The arraignment is the first time the defendant appears in court.

At the arraignment, the judge tells the defendant:

• What the charges are,
• What his or her constitutional rights are, and
• That if he or she does not have enough money to hire a lawyer, the court will appoint a lawyer free of charge.

The defendant may then respond to the charges by entering a plea. Common pleas include guilty, not guilty, or no contest (also known as “nolo contendere”).

• Not Guilty means the defendant says he or she did not commit the crime. Sometimes, defendants enter a plea of not guilty as a strategic decision during plea bargaining or because they want to go to trial and force the prosecution to prove its case beyond a reasonable doubt.
• Guilty means the defendant admits he or she committed the crime. The judge finds the defendant guilty and enters a conviction in the court record.
• No Contest means the defendant does not contest (disagree with) the charge. This plea has the same effect as a guilty plea, except the conviction generally cannot be used against the defendant in a civil lawsuit.

If the defendant is in custody at the time of arraignment, after the defendant enters a plea (responds to the charges), the judge will:

• Release the defendant on his or her “own recognizance” (which means the defendant promises to return to court on a specified date), OR
• Set bail and send the defendant back to the jail until the bail is posted, OR
• Refuse to set bail and send the defendant back to jail.

“Bail” is money or property that a defendant puts up as a promise to return for future court dates. When setting the amount of bail, the judge takes into account the seriousness of the crime, whether the defendant is a risk to the community, and whether he or she is a “flight risk” and likely to run away.

Charging

No one plans to get arrested. How does it work. Either you are arrested by the police or sent a letter telling you to come to court, at some point the police report documenting your case will make its way to the District Attorney’s office. At the District Attorney’s office is a person who is called the “charging DA”. If you look at the bottom of the Complaint filed against you, you will see the name of the person who is the charging DA is your case. I suspect that the charging DA in any one case is the Associate District Attorney who was not looking busy enough and basically got suck with the job.

What the Charging District Attorney does is to go through the police report of your case, and other early available evidence, with a nit comb [look it up] to find any possible crimes. The Charging District Attorney then reduces the list of crimes that they think that can prove, usually based on only a very basic review of the evidence and just the police officer’s report, to a written document called a Complaint. The Complaint is a list of the crimes that the District Attorney thinks that they can prove against you based on the initial reading of the police report.

When you are first arrested you may be given a ticket on the roadside or at the local police station, or the police can take you directly to the County jail, depending on the circumstance of you case. When you are given a ticket by a police officer, the office puts down the charges that the thinks that he witnessed and can support. When you are taken to the county jail, the officer and/or the people who assist in processing you write down the charges well before a police report is ever made. The officer or the jail, based on a very quick assessment compile a list of charges they think that the information supports.

Remember, the police and the people who work at the county jail are not lawyers. They are jailers. It is not unusual for the charges given to you at the county jail will be different than what the District Attorney actually files; the charges in the Complaint can elevate the charges that the police officer and the jail recommended or sometimes with luxury of hindsight the Charging District Attorney is able to see a fuller picture and will drop or reduce some of the first charges that were given to you.

It is different in every case. When you see your criminal defense attorney, at that very first meeting, make sure that you bring all of the paperwork that your were given that relates to your case.

The Arrest

When the police arrest someone (the defendant), they take him or her to jail.

Then, 1 of 3 things happens:

• The defendant is released if the prosecutor (usually the district attorney or the city attorney) decides not to file charges; or
• The defendant posts bail (also called a “bond”) or is released based on a promise to appear in court at a later date for arraignment. If either of these happen, the district attorney or police tell the defendant when to come to court for arraignment; or
• The defendant stays in jail. Law enforcement officers transport the defendant to the court for arraignment.

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