Notice of Appeal Written on a Typewriter

When trial courts make important legal errors in California criminal cases, filing a notice of appeal at the appropriate time may be a good idea.

An appeal is a procedure used to correct legal errors made in court. The appealing party requests that a higher court review the proceedings of a lower court to correct potentially important legal mistakes.[1]In California, the higher court can be the appellate division of the superior court (in misdemeanor or infraction cases), the Court of Appeal (in felony cases), or sometimes the California Supreme Court. The lower court in a criminal appeal is also called the “superior court.” A notice of appeal is the document that initiates the appeal.[2]See Cal. Rules of Court, rule 8.100. In a criminal appeal, it is usually the defendant or his attorney who files the notice of appeal.

If, after reviewing the arguments of the parties, a higher court (called the “appellate court”) finds that errors were made by the lower court, the higher may potentially modify or reverse the lower court’s decision. An appeal can be an important tool for criminal defendants. This article explains the process of initiating a criminal appeal by filing a notice of appeal.

This article covers only notices of appeal in California state courts. If you are interested in filing a notice of appeal in federal court, you should contact a qualified appellate attorney to advise you.

Do you have the right to appeal?

Trial court judges are not perfect, so it’s important that parties have an opportunity to correct potential mistakes.[3]See, e.g., In re Sterling (1965) 63 Cal.2d 486, 488 [“We fully recognize this state’s obligation to afford every defendant a full and fair opportunity to secure an adjudication of all claimed deprivations of his constitutional rights in the securing of the evidence offered against him at trial.”]. Often, an appeal is the best way for a losing party to correct an adverse lower court decision.

Before filing a notice of appeal, however, parties must determine whether the decision they’re challenging is appealable. A decision is appealable if it triggers a right to immediately file an appeal to a higher court.[4]See, e.g., Cal. Rules of Court, rule 8.304. If a decision is not appealable, parties may have to wait until an appealable order is filed (like a final judgment) before they can challenge the error in a higher court.

The U.S. Supreme Court has held that the federal constitution does not guarantee the right to file an appeal from a criminal conviction.[5]McKane v. Durston (1894) 153 U.S. 684, 687–688[“An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal.”]; People v. Scott (1998) 64 Cal.App.4th 550, 557. Likewise, California courts have held that judgments or orders are not appealable unless the legislature has specifically authorized an appeal.[6]People v. Mazurette (2001) 24 Cal.4th 789, 792 [“It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.”], citation omitted; but see People v. Rosalez (1962) 201 Cal.App.2d 643, 645 [suggesting that the right to appeal is a constitutional one].

Therefore, before a party may file a notice of appeal, they must be sure that they have a statutory right to appeal.

Final Judgments

Final judgments are the most common event triggering the right to appeal.[7]Pen. Code, § 1237. A final judgment is the judgment at the end of a case in the superior court. In criminal matters, the final judgment usually occurs when a defendant is sentenced or granted probation.[8]See Pen. Code, § 1237, subd. (b) [“A sentence . . . shall be deemed to be a final judgment within the meaning of this section.”]. If the case is dismissed prior to a conviction, that dismissal might also amount to a final judgment from which an appeal can be taken. Additionally, orders of civil commitment are sometimes considered a final judgment.

In appealing a final judgment, a criminal defendant may challenge any issues that were decided in the proceedings leading up to the final judgment—so long as the defendant has preserved his or her right to appeal those issues.[9]People v. Flores (1974) 12 Cal.3d 85, 94; People v. Gillispie (1997) 60 Cal.App.4th 429, [“In an appeal from a ‘final judgment of conviction’ under Penal Code section 1237, subdivision (a), the defendant has standing to raise a claim of error in any part of the record . . . .”]. Generally, this includes the right to challenge all factual findings (including jury verdicts, findings at sentencing, etc.) and legal determinations made by the trial court if they contributed to the outcome of the case.[10]Id.

Because the appellate court’s review of the record is comprehensive when the appeal is from a final judgment, most appeals are taken from final judgments.

Orders After Final Judgments

Losing parties also have a right to file an appeal when a lower court makes a post-judgment order if it affects their substantial rights.[11]Pen. Code, § 1237, subd. (b). This kind of appeal is somewhat less common than direct appeals from final judgments, and California courts have limited its scope.

California courts have not clearly defined which orders affect a party’s “substantial rights.”[12]People v. Loper (2015) 60 Cal.4th 1155, 1161 n.3 [“Our cases do not provide a comprehensive interpretation of the term ‘substantial rights’ as used in section 1237, subdivision (b), and we do not intend in this case to offer a generally applicable definition of that phrase.”]. Generally, however, a decision will affect a person’s substantial rights if it implicates his or her interest in personal liberty as well as certain economic interests.[13]Id. at p. 1161 n.3.

Importantly, a criminal defendant’s substantial rights are not affected if the matter being appealed is one that could have been reviewed by a timely appeal from the final judgment.[14]People v. Howerton (1953) 40 Cal.2d 217, 220. The right to appeal post-judgment orders cannot be used to extend the normal deadline for filing a notice of appeal from a final judgment. There must be a new order affecting newly-implicated substantial rights.

For example, where a defendant files a motion merely asking the lower court to repeat or overrule a former ruling on the same facts, the lower court’s order does not become appealable.[15]People v. Vaitonis (1962) 200 Cal.App.2d 156, 159. The defendant should instead appeal from the original final judgment.

So, what is an appealable post-judgment order? Courts have approached this question on a case-by-case basis. Some appealable post-judgment orders include orders modifying or revoking probation,[16]People v. Vickers (1972) 8 Cal.3d 451, 453 n.2; In re Bine (1957) 47 Cal.2d 814, 817–818. denying resentencing,[17]Teal v. Superior Court (2014) 60 Cal.4th 595, 598–599. setting restitution,[18]People v. Ford (2015) 61 Cal.4th 282, 286. or refusing to recall a defendant’s sentence and commitment.[19]People v. Loper, supra, 60 Cal.4th 1155, 1159–1160.

If you are unsure whether a post-judgment order in your case is appealable, you should contact a qualified appellate attorney to provide you with advice about the specific facts of your case.

Appeals From Guilty Pleas

Guilty pleas, or pleas of no contest (sometimes called “nolo contendere”),[20]Pen. Code, § 1016. have special requirements to establish a right to appeal. Generally, a case involving a guilty plea is only appealable in four situations:

The appeal challenges something that occurred after the plea, like an improper sentence or fine[21]Cal. Rules of Court, rule 8.304, subd. (b)(4)(B).

The appeal challenges the denial of a motion to suppress[22]Pen. Code § 1538.5, subd. (m); Cal. Rules of Court, rule 8.304, subd. (b)(4)(A); People v. Coyle (1969) 2 Cal.App.3d 60, 63.

The trial court has issued a certificate of probable cause for the appeal[23]Pen. Code, § 1237.5, subd. (b).

The appeal does not involve a felony[24]Pen. Code, § 1466; People v. Woods (1978) 84 Cal.App.3d 149, 153–154.

This list is the same for situations in which a criminal defendant has admitted a probation violation.

Complications often arise when a defendant seeks a certificate of probable cause to challenge his or her plea. A certificate of probable cause is a document in which the superior court certifies that at least one issue being raised on appeal is non-frivolous.[25]People v. Hoffard (1995) 10 Cal.4th 1170, 1178–1179.

Criminal felony defendants must file an application in the superior court for the issuance of a certificate of probable cause if they want to challenge the validity of their plea.[26]People v. Mendez (1999) 19 Cal.4th 1084; Cal. Rules of Court, rule 8.304, subd. (b). Additionally, the superior court is required to issue the certificate within 20 days if the defendant’s application presents any appealable issues that are not clearly frivolous.[27]People v. Hoffard, supra, 10 Cal.4th 1170, 1178–1179; Cal. Rules of Court, rule 8.304, subd. (b)(2).

If a criminal felony defendant has not obtained a certificate of probable cause, he or she is not permitted to challenge the validity of their plea—although, as explained above, he or she may still have a right to challenge other aspects of the case.[28]People v. Mendez, supra, 19 Cal.4th 1084; Pen. Code, § 1237.5. Additionally, if a defendant properly requests a certificate of probable cause, and the superior court denies the request, the defendant may challenge that denial by filing a document called a “petition for writ of mandate” (sometimes called “mandamus”) in a higher court.[29]People v. Buttram (2003) 30 Cal.4th 773, 793 [“[A] defendant who files a sworn statement of appealable grounds as required by section 1237.5, but fails to persuade the trial court to issue a probable cause certificate, has the remedy of filing a timely petition for a writ of mandate . . . .”].

Importantly, the requirement of obtaining a certificate of probable cause likely does not apply in misdemeanor or infraction appeals.[30]Pen. Code, § 1466; People v. Woods, supra, 84 Cal.App.3d 149, 153–154.

Custody Credit Issues

Like guilty pleas, custody credits present a special case for criminal appeals. Generally, a defendant may not initiate an appeal if he or she is only challenging an error in the calculation of presentence custody credits.[31]Pen. Code, § 1237.1. Rather, the defendant must first either (1) present the claim in the trial court at the time of sentencing, or (2) if the error is not discovered until after sentencing, they must make a motion for in the trial court seeking to correct the error.[32]Id. If either of these approaches are taken and the trial court still mistakenly fails to correct the credit error, then a direct appeal may be started.[33]See People v. Clavel (2002) 103 Cal.App.4th 516, 518–519.

When is a Notice of Appeal due?

Deadline to Appeal on PaperPerhaps the most important question in pursuing an appeal is determining when a party is required to file the notice of appeal. If a party misses the deadline to file a notice of appeal, they could lose their right to appeal.[34]In re Benoit (1973) 10 Cal.3d 72, 79 n.7 [“‘In both civil and criminal cases the time requirements for taking an appeal are mandatory, and appellate courts are without jurisdiction to consider a late appeal.'”], citation omitted.

In felony cases, the notice of appeal must be filed no later than 60 days after the date of the judgment (which, in most cases, is the date of sentencing). [35]Cal. Rules of Court, rule 8.308, subd. (a). If the appealing party is challenging an appealable order other than a judgment, the notice of appeal must be filed within 60 days of the making of the order being appealed.[36]Id.

In misdemeanor cases, the notice of appeal must normally be filed within 30 days of the judgment[37]Cal. Rules of Court, rule 8.853, subd. (a). or, if the party is appealing a specific order, the party must file the notice of appeal within 30 days of the making of that order.[38]Id. Additionally, if the party filing the appeal is the defendant, and the defendant was committed for insanity or narcotics addiction before a final judgment was rendered, the notice of appeal must be filed within 30 days of the commitment.[39]Id.

In most cases, the notice of appeal must actually be delivered and filed with the court within this 60- or 30-day window. California courts have, however, created an exception for self-represented criminal defendants who are incarcerated in prison—called the “prison-delivery” rule.[40]Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 121. Under the prison-delivery rule, a prisoner’s notice of appeal is deemed timely filed if delivered to prison authorities within the normal 60- or 30-day filing period.[41]In re Jordan (1992) 4 Cal.4th 116, 118–120. Because complications in delivery and filing can arise, criminal defendants should avoid relying on this rule if at all possible.

The California Supreme Court has suggested that there may be other exceptions to the normal 60- or 30-day deadline,[42]In re Benoit, supra, 10 Cal.3d 72, 89 [suggesting that a criminal defendant’s reasonable reliance on a trial attorney’s express promise to timely file a notice of appeal may create an exception to the normal 60- or 30-day filing deadline]. but defendants should nevertheless make every effort to file their appeal within the normal 60- or 30-day filing deadline, so as to ensure that their appeal is timely filed.

Where should a notice of appeal be filed?

A notice of appeal is filed in the same court in which the appealable order or judgment was made.[43]Cal. Rules of Court, rule 8.304, subd. (a)(1), 8.852, subd. (a)(1). In other words, the notice of appeal should be filed in the superior or trial court that heard and decided the matter.

Where will the appeal be heard?

In misdemeanor and infraction cases, appeals are heard by the appellate division of the same superior court in which the original case was heard.[44]Pen. Code, § 1466. In felony cases, appeals are heard in the appellate district in which the superior court is located.[45]Pen. Code, § 1235, subd. (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.”]; Cal. Const., art. VI, § 11; Cal Rules of Court, rule 8.304.

California has six appellate districts.[46]Gov’t Code, § 69100. The jurisdiction of each district covers several counties. You can find your county on the map below to see which appellate district your case will be assigned to:
California Appellate District Map

Each district has between one and three courthouse locations at which the judges hear appeals:

The First Appellate District hears cases at its San Francisco court.

The Second Appellate District hears most cases in Los Angeles, and some cases in Ventura, depending on the division to which a case is assigned.

The Third Appellate District hears its cases in Sacramento.

The Fourth Appellate District hears cases in San Diego, Riverside, and Santa Ana, depending on the division to which the case is assigned.

The Fifth Appellate District hears its cases in Fresno.

The Sixth Appellate District hears its cases in San Jose.

Direct Appeals vs. Collateral Attacks

This article has primarily focused on direct appeals. A “direct appeal” is an appeal taken from errors that occurred in the trial court and which are demonstrated by the appellate record. The appellate record includes the transcripts of the hearings in the trial court and the documents in the superior court’s case file.

A direct appeal is distinct from a process called a “collateral attack.” There are several types of collateral attacks, like petitions for writs of habeas corpus or coram nobis. Collateral attacks are attempts to impeach or overturn a judgment or order based on matters that are outside the record.

Because collateral attacks are different from direct appeals, they are subject to different deadlines. For example, a petition for writ of habeas corpus filed in state court will be subject to a much more flexible deadline than a direct appeal.[47]See, e.g., In re Reno (2012) 55 Cal.4th 428, 460 [merely requiring that a habeas petition be filed “without substantial delay”].

Additionally, collateral attacks are not initiated by a notice of appeal. If you are seeking relief that could be obtained through a collateral attack on the judgment or order, you should contact a qualified appellate attorney to advise you about all deadlines or procedures.

Criminal Notice of Appeal Forms (Sample)

A notice of appeal is a relatively simple document. California courts have prepared a few forms for parties or their attorneys to easily complete and file. These forms can be found at the following links: (1) infraction notice of appeal; (2) misdemeanor notice of appeal; and (3) felony notice of appeal.

Note: Be sure that you comply with all local and state court rules when completing and filing the notice of appeal.[48]Pen. Code, § 1239, subd. (a).

Final Thoughts

The notice of appeal is one of the most important documents in a California criminal appeal. People must ensure that it is filed on time, in the correct format, following the correct procedures, and after an event has triggered the right to appeal. The notice itself is a fairly simple document to complete, but knowing when, why, and how can be complicated. If you are interested in filing a notice of appeal in California, you should consider hiring a qualified appellate attorney to advise you.

References   [ + ]

1.In California, the higher court can be the appellate division of the superior court (in misdemeanor or infraction cases), the Court of Appeal (in felony cases), or sometimes the California Supreme Court. The lower court in a criminal appeal is also called the “superior court.”
2.See Cal. Rules of Court, rule 8.100.
3.See, e.g., In re Sterling (1965) 63 Cal.2d 486, 488 [“We fully recognize this state’s obligation to afford every defendant a full and fair opportunity to secure an adjudication of all claimed deprivations of his constitutional rights in the securing of the evidence offered against him at trial.”].
4.See, e.g., Cal. Rules of Court, rule 8.304.
5.McKane v. Durston (1894) 153 U.S. 684, 687–688[“An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal.”]; People v. Scott (1998) 64 Cal.App.4th 550, 557.
6.People v. Mazurette (2001) 24 Cal.4th 789, 792 [“It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.”], citation omitted; but see People v. Rosalez (1962) 201 Cal.App.2d 643, 645 [suggesting that the right to appeal is a constitutional one].
7.Pen. Code, § 1237.
8.See Pen. Code, § 1237, subd. (b) [“A sentence . . . shall be deemed to be a final judgment within the meaning of this section.”].
9.People v. Flores (1974) 12 Cal.3d 85, 94; People v. Gillispie (1997) 60 Cal.App.4th 429, [“In an appeal from a ‘final judgment of conviction’ under Penal Code section 1237, subdivision (a), the defendant has standing to raise a claim of error in any part of the record . . . .”].
10.Id.
11.Pen. Code, § 1237, subd. (b).
12.People v. Loper (2015) 60 Cal.4th 1155, 1161 n.3 [“Our cases do not provide a comprehensive interpretation of the term ‘substantial rights’ as used in section 1237, subdivision (b), and we do not intend in this case to offer a generally applicable definition of that phrase.”].
13.Id. at p. 1161 n.3.
14.People v. Howerton (1953) 40 Cal.2d 217, 220.
15.People v. Vaitonis (1962) 200 Cal.App.2d 156, 159.
16.People v. Vickers (1972) 8 Cal.3d 451, 453 n.2; In re Bine (1957) 47 Cal.2d 814, 817–818.
17.Teal v. Superior Court (2014) 60 Cal.4th 595, 598–599.
18.People v. Ford (2015) 61 Cal.4th 282, 286.
19.People v. Loper, supra, 60 Cal.4th 1155, 1159–1160.
20.Pen. Code, § 1016.
21.Cal. Rules of Court, rule 8.304, subd. (b)(4)(B).
22.Pen. Code § 1538.5, subd. (m); Cal. Rules of Court, rule 8.304, subd. (b)(4)(A); People v. Coyle (1969) 2 Cal.App.3d 60, 63.
23.Pen. Code, § 1237.5, subd. (b).
24.Pen. Code, § 1466; People v. Woods (1978) 84 Cal.App.3d 149, 153–154.
25.People v. Hoffard (1995) 10 Cal.4th 1170, 1178–1179.
26.People v. Mendez (1999) 19 Cal.4th 1084; Cal. Rules of Court, rule 8.304, subd. (b).
27.People v. Hoffard, supra, 10 Cal.4th 1170, 1178–1179; Cal. Rules of Court, rule 8.304, subd. (b)(2).
28.People v. Mendez, supra, 19 Cal.4th 1084; Pen. Code, § 1237.5.
29.People v. Buttram (2003) 30 Cal.4th 773, 793 [“[A] defendant who files a sworn statement of appealable grounds as required by section 1237.5, but fails to persuade the trial court to issue a probable cause certificate, has the remedy of filing a timely petition for a writ of mandate . . . .”].
30.Pen. Code, § 1466; People v. Woods, supra, 84 Cal.App.3d 149, 153–154.
31.Pen. Code, § 1237.1.
32.Id.
33.See People v. Clavel (2002) 103 Cal.App.4th 516, 518–519.
34.In re Benoit (1973) 10 Cal.3d 72, 79 n.7 [“‘In both civil and criminal cases the time requirements for taking an appeal are mandatory, and appellate courts are without jurisdiction to consider a late appeal.'”], citation omitted.
35.Cal. Rules of Court, rule 8.308, subd. (a).
36.Id.
37.Cal. Rules of Court, rule 8.853, subd. (a).
38.Id.
39.Id.
40.Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 121.
41.In re Jordan (1992) 4 Cal.4th 116, 118–120.
42.In re Benoit, supra, 10 Cal.3d 72, 89 [suggesting that a criminal defendant’s reasonable reliance on a trial attorney’s express promise to timely file a notice of appeal may create an exception to the normal 60- or 30-day filing deadline].
43.Cal. Rules of Court, rule 8.304, subd. (a)(1), 8.852, subd. (a)(1).
44.Pen. Code, § 1466.
45.Pen. Code, § 1235, subd. (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.”]; Cal. Const., art. VI, § 11; Cal Rules of Court, rule 8.304.
46.Gov’t Code, § 69100.
47.See, e.g., In re Reno (2012) 55 Cal.4th 428, 460 [merely requiring that a habeas petition be filed “without substantial delay”].
48.Pen. Code, § 1239, subd. (a).