Appeal, generally
Category > Appeal, generally
Updated 2/23/2024Defendant could appeal a probation condition despite an appellate waiver where the law changed after his waiver.Defendant waived his right to appeal as part of a plea agreement. Because his present claim - a challenge to an electronic search probation condition - depends on a post-waiver change in the law (In re Ricardo P. (2019) 7 Cal.5th 1113) his waiver was not knowing and voluntary. He could therefore challenge the probation condition on appeal despite the waiver.id: 26907
Updated 2/23/2024Defendant’s appeal waiver did not prevent her from seeking retroactive application of SB 180, and the matter was returned to allow the parties to negotiate a new deal.Defendant pled guilty to a drug offense along with an enhancement for a prior drug offense, agreed to an eight year prison term and waived her right to appeal. Before sentencing, the Legislature passed SB 180, which eliminated enhancements for most drug-related prior convictions. She then moved to invalidate the enhancements imposed in her case. The appeal waiver did not prevent her from seeking retroactive application of SB 180. The plea agreement is now unenforceable and the parties can go back and enter into a new agreement or go to trial.id: 26950
Updated 2/3/2024Defendant’s oral waiver of the right to appeal was invalid. The Attorney General argued that defendant waived his right to appeal in the plea agreement. However, the oral waiver was invalid as the circumstances did not show that it was a fully informed, bargained-for term of the agreement. id: 27771
Defendant did not waive the right to appeal based on a change in the law of which he was unaware at the time of the plea.Defendant pled guilty to transporting a controlled substance, and admitted having a prior conviction for possessing cocaine base for sale. The latter triggered imposition of a three year enhancement under Health and Safety Code section 11370.2, subd.(a). Defendant also waived the right to appeal “any sentence stipulated herein.” The court imposed the 11 year stipulated term. Thereafter, the Governor signed SB 180, which amended section 11370, and the provision was determined to be retroactive to cases not yet final on appeal. The defendant’s waiver of the right to appeal the stipulated sentence did not apply to the sentencing error based on the future change in the law.id: 26052
Challenges to decisions regarding compassionate release should be made on appeal, and the trial court erred by denying release without finding defendant was a threat.The secretary of the CDCR requested that the trial court recall defendant’s sentence under Penal Code section 1170, subd. (e), on the grounds that he had less than six months to live, and posed no threat to the community. The trial court thereafter denied the request for compassionate release. The court’s ruling was erroneous because it found he did not deserve to die at home with his family, and the court made no finding as to whether the defendant posed a threat. Challenges to the trial court’s rulings regarding compassionate release should be made on appeal rather than the writ process, and the parties should inform the court of factors relevant to a request for expedited processing of the appeal.id: 26054
Appellate division rulings must include a statement of reasons and that requirement doesn’t conflict with the rule relieving the court from having to write opinions.The Appellate Division of the Superior Court summarily reversed the trial court’s ruling granting defendant’s suppression motion in his drunk driving case. However, the appellate division was required by Code of Civil Procedure section 77, subd.(d) to issue a brief statement of reasons for its judgment. This requirement does not conflict with rule 8.887, subd.(a) of the Cal. Rules of Court, which relieves appellate divisions from having to issue written opinions.id: 24980
The trial court erred in denying defendant’s request for the appointment of appellate counsel following a restitution order in connection with a misdemeanor conviction.An order requiring the payment of restitution is a “significant adverse collateral consequence” within the meaning of California Rules of Court, rule 8.51(a)(1)(A), requiring the appointment of counsel for an indigent defendant on appeal in a misdemeanor case.id: 25321
Trial court’s denial of a request for compassionate release was an appealable order. The trial court’s denial of a request for compassionate release under Penal Code section 1170, subd.(e), was an order made after judgment that affected defendant’s substantial rights. Accordingly, it was authorized by section 1237, subd.(b).id: 24018
Denial of a motion for resentencing under the Three Strikes Reform Act is appealable.The trial court’s denial of defendant’s motion seeking resentencing under the Three Strikes Reform Act is appealable. id: 23562
A defendant can appeal the denial of an Evans lineup even if he does not seek writ review of the denial. When the trial court denies a defendant’s motion for a physical lineup and the defendant does not seek writ review of that ruling, the defendant is not barred from raising the issue on postjudgment appeal.id: 22726
Defendant was not estopped from challenging as part of an agreed upon sentence, an enhancement which was not charged and he did not admit.Defendant pled guilty to six of 24 charged counts in return for a specific sentence to which he agreed was based on an enhancement (robbery in concert) that was never charged and which he did not admit. Contrary to the Attorney General’s claim, defendant was not estopped from challenging the deal in that he benefitted from the plea bargain. The Court of Appeal used its authority under Penal Code section 1260 to reduce the sentence.id: 22320
Waiver of right to appeal guilty plea was not knowing or voluntary where it wasn’t fully explained to defendant and the court exerted pressure to enter the waiver.Defendant did not knowingly and voluntarily waive his right to appeal his guilty plea. The waiver was discussed after the plea was entered and was never fully explained to the defendant. The court also exerted pressure by telling defendant he should not let this matter hang up his plea and by saying it did not see any appellate issues. The pressure denied defendant the full opportunity to make the waiver on his own accord.id: 22319
A claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged
ineffectiveness.Defendant entered a no contest plea. As part of the plea bargain, he
agreed to what was characterized as an all-encompassing waiver of appellate rights, including
any challenges based on the ineffective assistance of counsel. While the form referred to
“appellate rights”, it included waiver of the right to bring a motion to withdraw the plea. At
sentencing, he moved to retain counsel and sought to withdraw the plea due to the ineffective
assistance of counsel. It was determined that he had waived the right to due so. However, a
defendant cannot be found to have waived his presentence right in the trial court to challenge the
effectiveness of counsel when the claimed ineffectiveness relates to the advice he received at the
time he entered the plea containing that purported waiver.id: 21328
A criminal defendant may file a notice of appeal with a courtroom clerk rather than the appeals unit of the clerk’s office.After the jury convicted defendant, but before sentencing, defendant attempted to file a notice of appeal with the clerk in the courtroom. The judge dismissed the matter finding the notice was premature and that it needed to be filed in the appeals unit of the clerk’s office rather than with the courtroom clerk. The Court of Appeal issued a remittitur in 2007. The California Supreme Court, in response to a habeas corpus petition, sent the matter back suggesting the remittitur be recalled and the defendant be permitted to file a notice of appeal. The Court of Appeal found there was no basis to recall the remittitur, but also granted the habeas petition and found a notice of appeal may be filed with a courtroom clerk rather than the appeals unit. id: 21280
The constructive filing doctrine of Benoit applies to a petition for writ of mandate or prohibition under section 1405, subd.(j).The constructive filing doctrine of In re Benoit (1973) 10 Cal.3d 72, applies to a petition for writ of mandate or prohibition under Penal Code section 1405, subd.(j), challenging a postjudgment order denying a motion to conduct DNA testing. Because defendant satisfied the requirements for constructive filing, the court granted his petition for writ of habeas corpus and deemed his notice of appeal filed in December 2008 to constitute a timely filed petition for writ of mandate under section 1405, subd.(j). id: 21260
The Court of Appeal agreed to treat the untimely notice of appeal as a habeas corpus petition to avoid the claim that trial counsel was ineffective in not filing the notice. Defendant absconded during his trial and was convicted of domestic violence. He argued trial counsel rendered ineffective assistance by not filing a timely notice of appeal, because Crawford v. Washington, which would have helped his case, was decided within two weeks of his conviction in 2004. The Court of Appeal agreed to treat defendant’s untimely notice of appeal as a habeas corpus petition to prevent litigation on the IAC claim.id: 20832
In forma pauperis complaint which fails to state a claim is not automatically frivolous.In a unanimous opinion written by Justice Marshall, the Supreme Court held that a complaint filed in forma pauperis which fails to state a claim under Fed. R. Civ. P. 12(b)(6) is not automatically frivolous within the meaning of 28 U.S.C. section 1915(d). Although the complainant is indigent, he is entitled to notice of a motion to dismiss and opportunity to amend the complaint before the motion is ruled on.id: 14706
Appellant as an indigent criminal defendant was entitled to a transcript of his first trial and denial of the transcript required reversal.Appellant's request for a transcript was timely made only three days after his first trial, at a hearing set to schedule his retrial. He was represented by the public defender and must be considered indigent for purposes of determining his right to a transcript. He also made a showing of necessity for the transcript to effectively cross-examine witnesses. The court clearly erred by demanding a further showing of need and the error required automatic reversal.id: 14697
Defendant's right to appeal was reinstated where his failure to file an opening brief was due in part to an oversight by a court clerk regarding appointment of appellate counsel.Defendant's appeal was dismissed for failure to file an opening brief and he petitioned for a writ of habeas corpus to recall remittitur and vacate the order dismissing the appeal. Defendant had timely filed a notice of appeal and an affidavit of financial ability and request for appointment of counsel. The clerk of the Court of Appeal inadvertently overlooked the financial affidavit and sent a letter to defendant at the county jail. However, defendant's transfer to two different prisons resulted in his failure to receive the correspondence. Defendant was entitled to relief because the clerk's oversight and the subsequent institutional failures resulted in denial of appellate counsel and undue restrictions on defendant's right of reasonable access to the courts.id: 14703
Filing of an appeal notice does not divest the trial court of jurisdiction to recall a sentence for modification.Appellant's motion to recall his sentence under Penal code section 1170, subdivision (d) was made after he had filed a notice of appeal from his judgment of conviction and sentence. The trial court denied the motion reasoning that it was without jurisdiction until determination of the appeal. However, a trial court is not divested of it limited jurisdiction under section 1170, subdivision (d) to recall a sentence of modification within 120 days of the defendant's commitment by the filing of an appeal notice.id: 14705
The record did not support a knowing and intelligent waiver of defendant's right to appeal sentencing error occurring after a general waiver of the right to appeal.As part of the negotiated plea agreement, defendant expressly waived his right of appeal. He later claimed the court erred in denying his motion for a continuance and in reducing his conduct credits at his sentencing hearing. However, his waiver of the right to appeal was knowing and voluntary. His written waiver demonstrated, independent of the oral advisement by the court, that he was fully informed of his rights. He was therefore precluded from challenging the denial of the continuance motion. The waiver did not include error occurring after the waiver (erroneous reduction of conduct credits) because such a waiver of possible future error did not appear to be within his contemplation and knowledge at the time the waiver was made.id: 14715
Waiver of the right to appeal did not also waive legal error regarding defendant's parole eligibility committed after the waiver at sentencing.As part of a negotiated disposition defendant waived his right to appeal. At sentencing the trial court made a fundamental mistake concerning defendant's probation eligibiltiy. Defendant's waiver of the right to appeal did amount to a waiver of the right to have his parole eligibility determined under the proper legal standard. The general waiver was not knowing and intelligent as to errors committed after the waiver.id: 14718
Order granting defendant bail on appeal was not an abuse of discretion where defendant's appeal raised a substantial legal question.Asserting there was no substantial legal question as to whether Penal Code section 1203.07, subd. (a)(11) eliminated the court's power to strike the prior convictions finding and place defendant on probation, the People argued the superior court abused its discretion in granting him bail pending appeal. The People's appeal was authorized under section 1238, subd. (a)(5) as the bail order substantially affects their right to be secure from dangers of convicted felons released into society. However, the court acted within its discretion in concluding defendant's appeal raised a substantial legal question which, if decided in defendant's favor, would likely result in reversal of his sentence.id: 14711
Supreme Court rejects automatic dismissal of appeal where fugitive recaptured before appeal filed.Following conviction for various drug offenses, petitioner failed to appear for sentencing and was sentenced in absentia. Eleven months later, petitioner was arrested, indicted and found guilty of contempt of court and failure to appear. The district court vacated the judgement previously entered and resentenced petitioner to a lesser term. Petitioner then filed a timely appeal of his conviction but the court of appeals dismissed on the grounds petitioner had become a fugitive. In a 6-3 opinion, Justice Stevens concluded that when a defendant's flight and recapture occur before appeal, the former fugitive status may lack the kind of connection to the appellate process that would justify dismissal. The court of appeals retains the authority to dismiss an appeal but should consider the delay in the onset of the appellate proceedings, the prejudice to the government and the level of misconduct at the district court. The case was remanded to determine whether dismissal was proper.id: 14713
Defendant's weapons were improperly confiscated following his guilty plea to cultivating marijuana.Defendant pled guilty to one count of cultivating marijuana. He moved for the return of personal property (firearms) but the court refused to return the property pursuant to Penal Code section 12028, which declares firearms used in the commission of a crime to be a nuisance and provides for confiscation and destruction of such firearms. However, the firearms were improperly confiscated as none of the elements of the offenses of which defendant was charged related to firearm use and there was no specific adjudication of the issue whether firearms were used in the commission of the crime. Moreover, both the appeal (from the order after judgment confiscating the weapons pursuant to section 12028) and the writ of mandate (reviewing the denial of the motion to return defendant's property) were proper proceedings.id: 10719
Defendant was entitled to reinstatement of his appeal after his retained appellate lawyer failed to file an opening brief.After defendant was convicted of murder his family retained an attorney to represent him on appeal. However, the appeal was subsequently dismissed for failure to file an opening brief as the retained attorney sold his practice and nothing was done in defendant's appeal. Without holding an evidentiary hearing the Court of Appeal rejected defendant's factual allegations finding they lacked credibility. The Supreme Court found that the equities lie in defendant's favor and that he is entitled to reinstatement of his appeal. The judgment of the Court of Appeal in denying the writ of habeas corpus was reversed.id: 14701
Giving notice of appeal to the prison official for mailing sixty days after the sentencing constituted constructive filing of the notice of appeal.Defendant gave his notice of appeal to prison officials for mailing sixty days after the sentencing. Giving the notice of appeal to the Dorm Officer constituted constructive filing of the document. The fact that the envelope containing the notice was addressed to the Clerk of the Court of Appeal was irrelevant.id: 16325
A court clerk may not determine the appealability of an order and a defendant has the right to appeal from resentencing after issuance of an order to show cause as an order after judgment.Following a 25 years to life sentence under the three strikes law, defendant filed a habeas corpus petition seeking a resentencing in light of People v. Superior Court (Romero) (1996) 12 Cal.4th 497. The superior court conducted a sentencing rehearing but refused to dismiss any strike priors. Defendant filed a notice of appeal which was rejected by the superior court clerk. However, the decision as to whether an order is appealable is a judicial function. Thus, the clerk should not have refused to accept the appeal. Moreover, if the trial court finds probable merit in the habeas petition, issues an order to show cause, and conducts a sentencing rehearing, the sentencing decision must be considered as an order after judgment affecting the substantial rights of the parties, and thus appeal of the decision under Penal Code section 1237 will lie.id: 16319
Defendant's appeal was not moot even though her conviction was set aside pursuant to Prop 36.Defendant's conviction for drug possession was set aside pursuant to Proposition 36 because she successfully completed the prescribed drug treatment program and fulfilled her probation conditions. Contrary to the Attorney General's argument, the dismissal under these conditions did not render defendant's appeal moot since the conviction still exists for some purposes and has certain collateral consequences, she is entitled to an opportunity to clear her name and rid herself of the stigma of criminality.id: 16995
The appeal was reinstated for a defendant who became a fugitive prior to sentencing and was later apprehended after the appeal was dismissed.Defendant became a fugitive while his case remained in the trial court upon his failure to appear at sentencing. He was a fugitive when his trial attorney filed a notice of appeal on his behalf and during the entire time his appeal was pending, and after its dismissal. Defendant was entitled to pursue his appeal anew after he was apprehended and in the custody and control of the state. While he may have flouted the trial court's authority when he became a fugitive, foreclosing appellate review was not the proper remedy. He could have been charged with failing to appear. Moreover, even though defendant's fugitive status precluded consolidation of his appeal with his codefendant's appeals which resulted in the loss of an efficient disposition of the related appeals, this was an inadequate basis to disallow appellate review of the convictions.id: 17236
Residential nature of a prior burglary not proved at trial may not be proved on appeal.The People offered no evidence at the trial on the priors that defendant's earlier burglary was of an inhabited dwelling. The People, on appeal, argued the residential nature of the burglary can be proved by appellate judicial notice or appellate fact finding. However, an appellate court may not on direct appeal from a judgment take judicial notice of or consider matters that were not considered by the trial court.id: 14006
Welfare and Institutions Code section 800, subd.(c) does not restrict a minor's right to appeal from an order granting probation.Welfare and Institutions Code section 800, subd.(c), states that it does not authorize an appeal from an order granting probation to a minor. However, despite that language, the provision does not preclude a minor from appealing such an order.id: 14969
Waiver of appellate rights was invalid where there was no advisement of those rights before the purported waiver.The People argued defendant waived his appellate rights as part of the plea bargain. However, there was neither a written form including an advisement nor an oral advisement of defendant's appellate rights. While there was a purported waiver there was no advisement and therefore the waiver was not knowing and intelligent.id: 11579
The denial of defendant's motion to vacate a plea for lack of advice regarding immigration consequences is an appealable order.Penal Code section 1016.5 requires that before accepting a guilty plea the trial court must properly advise a defendant as to the immigration consequences of the plea. The statute allows the defendant to move to vacate the judgment if the trial court fails to give the required advisements. The defendant may appeal from the trial court's denial of his section 1016.5 motion to vacate.id: 16960
Defendant did not expressly waive right to challenge the ruling that the Arizona prior constituted a strike since that ruling had not been made at the time of the waiver.Defendant argued on appeal the record was insufficient to prove his Arizona robbery conviction contained all of the elements of California robbery for three strikes purposes. The prosecution argued that, as part of his plea agreement, he expressly waived his right to appeal any issues regarding his prior conviction allegations. However, at the time of the waiver, the court had not determined the Arizona prior constituted a strike. Because the issue was unresolved at the time of the plea, it fell outside of defendant's contemplation and knowledge when the waiver was made.id: 16806
Murgia motion was cognizable on appeal following a guilty plea since it raised a constitutional issue which went to the legality of the proceedings.Following a guilty plea, defendant filed a discovery motion seeking information with respect to whether he was prosecuted only because he is an African-American. (Murgia v. Municipal Court (1975) 15 Cal.3rd 286.) The prosecution argued the motion is not cognizable on appeal following a guilty plea. However, the motion did not seek material that could result in the exclusion of evidence that would be relevant to guilt. Rather, the motion sought evidence of an equal protection violation which would mandate dismissal regardless of guilt. The motion was cognizable on appeal since it raised a constitutional ground which challenged the legality of the proceedings.id: 17148
Updated 3/6/2024The minor could not appeal an order of restitution imposed as a condition of her release under informal supervision.The juvenile court imposed a restitution order as a condition of the minor’s release on a program of supervision under Welfare and Institutions Code section 654.2. The order was neither a judgment nor an order after judgment for which an appeal was authorized under section 800. The appeal was dismissed.id: 26596
Updated 3/6/2024Juvenile court’s failure to designate the wobbler to be a felony or misdemeanor could not be challenged after the time to appeal the disposition had expired.When a minor is found to have committed a wobbler offense, the juvenile court must declare the offense to be a felony or misdemeanor. The court’s failure to so declare cannot be challenged after the time to appeal the original disposition expired. Noncompliance did not make the original disposition order an unauthorized sentence that could be corrected at any time.id: 26663
Updated 2/26/2024When counsel files a “Wende brief” in an appeal from an SB 1437 denial, the court is not required to review the record.When an appointed counsel files a “Wende” (no issues) brief in an appeal from a summary denial of a Penal Code section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interest of justice.id: 27010
Updated 2/26/2024The court found after independent Wende review that there were no issue for the actual killer who sought SB 1437 relief. Defendant punched his elderly father in the face and he died. Defendant was convicted of murder. He filed for a resentencing under Penal Code section 1170.95, but the trial court denied the petition given that he was the actual killer. The Court of Appeal exercised its discretion under Wende review to look for appellate issues but found none. The dissent argued independent review was unnecessary where the defendant was plainly ineligible for section 1170.95 relief.id: 27105
Updated 2/26/2024Defendant had no right to a Wende review following the denial of his motion to vacate under section 1473.7.A defendant has no right to Wende review by the court following the denial of his motion to vacate the judgment under Penal Code section1473.7.id: 27212
Updated 2/26/2024Wende procedure does not apply to orders denying relief under section 1170.95. The Wende procedure does not apply to an appeal from the denial of an order denying a postconviction petition sentencing relief pursuant to Penal Code section 1170.95id: 27242
Updated 2/26/2024Defendant was not entitled to a Wende review from the denial of an order revoking and reinstating PRCSAn order revoking and reinstating Post Release Community Supervision was not subject to Wende review by the appellate court because it was not a direct appeal from a judgment of conviction.id: 27243
Updated 2/24/2024The trial court lacked jurisdiction to grant the motion to correct the sentence that was filed after the appeal had concluded.After the defendant’s direct appeal had concluded, he filed a motion in the trial court seeking to modify his sentence by reducing the restitution fine based on his ability to pay. The trial court denied the motion and defendant appealed. Because the motion to modify the sentence was filed after the conclusion of the direct appeal and there was no other basis for trial court jurisdiction over the motion, the order denying it was nonappealable.id: 26638
Updated 2/23/2024Wende brief procedure is not available following the denial of postconviction relief. The trial court denied defendant’s petition seeking resentencing under Penal Code section 1170.95. When appointed counsel on appeal found no arguable issues to present to the court, he filed a no issues brief under People v. Wende (1979) 25 Cal.3d 436. However, Wende’s procedures do not apply to appeals from the denial of postconviction relief. In such cases, counsel must inform the court there are no arguable issues, defendant may then file a supplemental brief, and the court after reviewing issues raised in the supplemental brief may dismiss the appeal without conducting an independent review of the record. id: 26945
Updated 2/7/2024The denial of a request to reduce a restitution fine was a nonappealable order.Defendant argued the trial court erred in denying his motion to modify the restitution fine that was imposed without considering his ability to pay. However, the appeal was dismissed because the denial of the request to reduce the fine was a nonappealable order. id: 27138
Updated 2/4/2024Wende review by the appellate court was not required following a no issues brief–following the denial of an application for outpatient release under section 1026.2.Defendant appealed from the denial of his application for outpatient release pursuant to Penal Code section 1026.2 after a finding of not guilty by reason of insanity in a trial that took place years earlier. Appellate counsel found no arguable issues. The procedures described in Anders v. California (1967) 386 U.S. 738, and People v. Wende (1979) 25 Cal. 3d 436, do not apply in the present context although defendant was invited to file his own brief.id: 27641
Updated 2/4/2024Wende review does not apply to petition for resentencing under section 1172.6. When appellate counsel submits notice that an appeal from the denial of a petition for resentencing under Penal Code section 1172.6 lacks arguable merit, the Court of Appeal should provide notice to the defendant that counsel was unable to find any arguable issues; the defendant may file a supplemental brief raising potential issues, and if no such brief is filed, the court may dismiss the appeal as abandoned. The procedures described in People v. Wende (1979) 25 Cal.3d 436, do not apply.id: 27652
Updated 2/4/2024The Court of Appeal may review the record following a “no issues” brief after the denial of a postconviction sentencing petition.Defendant petitioned the trial court for resentencing under Penal Code section 1172.6. Appellate counsel filed a “no issues” brief following the denial of the petition. The court invited defendant to file a supplemental brief on his own but he did not file one. The court thereafter performed a review but found no arguable issues.id: 27592
Updated 2/3/2024Wende review is not available following the extension of NGI commitments. The trial court extended defendant’s not guilty by reason of insanity commitment by two years under Penal Code section 1026.5(b). Defendant sought to appeal, but counsel found no arguable issues. Counsel sought independent review by the court under People v. Wende (1979) 25 Cal.3d 436. However, Wende review is not available in appeals following the extension of NGI commitments. id: 27770
Updated 2/2/2024Denial of a motion to vacate a 20 year-old sentence was not an appealable order. Defendant moved to vacate his sentence more than 20 years after entry of judgment. The court construed the request as a petition for a writ of habeas corpus. The habeas denial was not an appealable order pursuant to Penal Code section 1237(b).id: 27882
Updated 2/1/2024The appellate court need not review issues in an appeal from the denial of postconviction relief where counsel files a “no issues” brief because Wende review is not available.After defendant’s appeal was denied as untimely, he sought to reduce his grand theft conviction to a misdemeanor under Penal Code section 1170.18. The trial court denied the request and defendant appealed. Defense counsel on appeal filed a “no issues” brief that was not subject to Wende review, which does not apply to the denial of postconviction relief. Defendant then asked the court to review or resolve certain issues. however, the court cannot do so because the appeal was abandoned and dismissed once appellate filed the “no issues” brief.id: 27979
Updated 1/29/2024The appellate court need not conduct an independent review following a Wende brief in an appeal from an extension of an NGI’s civil commitment.An appellate court is not required to review the record for the existence of meritorious issues in a matter where the superior court extended the civil commitment of an individual previously found not guilty by reason of insanity, when the individual’s appointed counsel informs the court he or she has found no arguable issues on appeal. The client has been notified of the fact and was given a chance to file a brief, but did not raise any issues on appeal.id: 24676
Order denying post appeal motion to strike gun use enhancements was not appealable, and SB 620 does not apply to cases final on appeal. Defendant pled guilty to certain offenses and admitted firearm use allegations in 2016. He appealed the sentence and the remittitur was issued on November 16, 2017. He later filed a motion in the trial court to strike the gun enhancements and the motion was denied on January 8, 2018. He now claims the matter need be remanded under SB 620 to give the trial court to give the trial court discretion to dismiss the enhancements. However, the challenged order was not appealable because the trial court lacked jurisdiction to rule on the motion. Moreover, the new law does not apply to cases that are final on appeal.id: 26152
An appeal from a postjudgment order that raises no issues may be dismissed or abandoned without a full review of the record.When a defendant appeals from a postjudgment order (in this case the denial of a Penal Code section 1170.95 petition) but raises no issues, the appeal may be dismissed as abandoned without a review of the entire record by the Court of Appeal.id: 27146
Defendant’s appellate waiver included his custody credits claim, and his failure to obtain a CPC precluded a challenge to the enforceability of the waiver. Defendant pled no contest to an auto theft charge. As part of the plea, he agreed to waive “all rights regarding writs and appeal.” He later argued the trial court erred by failing to award 164 days of custody credits. However, the claim was barred because it fell within the scope of appellate waiver. Moreover, because he did not obtain a certificate of probable cause, he could not challenge the enforceability of the waiver, including a claim that it was not knowing and intelligent.id: 26065
Defendant’s unequivocal waiver of his right to appeal as part of his guilty plea precluded appellate review.Defendant argued the trial court erred by failing to suppress his Miranda-violative statement. However, he entered a guilty plea, and his unequivocal waiver of the right to appeal precluded appellate review of the issue. The issuance of the certificate of probable cause to appeal did not change the conclusion since it was legally ineffectual.id: 25949
The minor could not challenge the failure to designate her offenses as felonies or misdemeanors where she failed to file a notice of appeal until the court ordered a subsequent dispositional order.The minor argued the juvenile court erred by failing to declare whether her Vehicle Code section 10851 offenses were either felonies or misdemeanors. However, the minor failed to file a timely notice of appeal to challenge that issue. The minor argued that the failure to properly designate the offenses resulted in an unauthorized sentence that can be addressed at any time. However, the unauthorized sentence rule is an exception to the forfeiture doctrine, not to the jurisdictional requirement of a timely notice of appeal.id: 25861
A certificate of probable cause was required to challenge a probation condition on appeal where defendant had waived the right to appeal as part of a plea bargain.Defendant pled guilty to a felony offense and waived her right to appeal. She thereafter sought to challenge a probation condition prohibiting her from possessing weapons. However, a defendant who waives the right to appeal as part of a plea agreement must obtain a certificate of probable cause to appeal on any ground covered by the waiver, regardless of whether the claim arose before or after the entry of the plea.id: 25625
The victim was entitled to file an impact statement on appeal as long as it did not raise new issues or facts.Marsy’s Law entitled an embezzlement victim to file an impact statement on appeal but the statement may not raise new issues or rely on new facts.id: 24954
Defendant could not pursue an appeal, and a motion to correct sentence, hoping to appeal the denial of that ruling as well.Defendant pled no contest to two drug offenses. On appeal, he challenged the denial of a suppression motion. He thereafter filed a motion to correct the sentence in the trial court, which the court denied. He then filed another appeal challenging the imposition of penalty assessments in the criminal laboratory analysis fee and the drug program fee. However, defendant’s failure to raise the penalty assessment claim in the original appeal prevented him from raising it in future appeals.id: 25558
There is no constitutional right to self-representation on appeal from an SVP commitment.The trial court did not err in denying the defendant’s request to represent himself on appeal following the jury’s verdict finding him to be a sexually violent predator.id: 21485
The Court of Appeal urged the trial court to implement procedures that would prevent clerical mistakes involving the handling of a notice of appeal.Defendant pled guilty to a charged offense on October 14, 2005. He was sentenced on November 23, 2005 and filed a notice of appeal the same day. However, the superior court clerk did not mail the notice of filing the notice of appeal to the Court of Appeal until March 11, 2008. The clerk admitted in a declaration that the notice had been “filed and forgotten.” The Court of Appeal processed the case immediately and affirmed the judgment but urged the trial courts to implement procedures to prevent such important clerical mistakes in the future.id: 20886
Wende review does not apply to an appeal from the denial of a petition to release an SVP.Wende review, which allows the court to review the record to determine whether there are any arguable appeal issues, does not apply from the denial of a defendant’s petition for release from his commitment as a sexually violent predator.id: 24224
Claim that defendant was entitled to disqualify the judge from ruling on a motion was not cognizable on appeal.Defendant argued the judge was biased in determining the admissibility of his 1973 rape conviction and that she should have disqualified herself from deciding the issue. However, defendant’s claim that he was statutorily entitled to disqualify the judge was not cognizable on appeal because a determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the court of appeal sought only by the parties to the proceeding within 10 days of notice to the parties. id: 23767
An attempted criminal threat must be sufficient to cause a reasonable person to be in sustained fear. The crime of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear. id: 23791
Appellate counsel filing Wende briefs should continue to identify “arguable-but unmeritorious” issues.Appellate counsel filed a no-issues “Wende” brief. The court, disagreeing with the recent opinion in People v. Hernandez (2014) 228 Cal.App.4th 539, found that appellate counsel should not eliminate the practice of identifying “arguable-but-unmeritorious” issues in Wende briefs. id: 23792
Defendant was not entitled to the court’s independent review of a “no arguable issues” brief following the denial of a petition for resentencing under the Three Strikes Reform Act.A defendant is not entitled to Wende review of an appeal from the denial of his petition for recall and resentencing pursuant to the Three Strikes Reform Act of 2012. He had an appeal following the conviction and there was no independent due process right to Wende review in this context.id: 23750
There is no right to Wende review following the denial of a petition for resentencing under the Three Strikes Reform Act.Defendant was not entitled to Wende review on appeal from the denial of his petition for recall and resentencing pursuant to the Three Strikes Reform Act.id: 23805
The trial court lacked jurisdiction to modify the verdict once defendant filed the notice of appeal. Defendant was convicted of first degree murder, his motion for a new trial was denied and he filed a notice of appeal. The trial court thereafter erred by reducing the offense to second degree murder and imposing a lower term. The trial court had no jurisdiction to modify the verdict and resentence. While Penal Code section 1170, subd.(d) allows a trial court to modify a sentence within 120 days it does not authorize the court to change the verdict. The filing of the notice of appeal also divested the court of jurisdiction to find the first degree murder sentence was cruel and unusual or to modify the verdict under section 1181.id: 23824
Following Proposition 47, the Court of Appeal has appellate jurisdiction for any offense that was originally charged as a felony. Nothing in Proposition 47, including the provision that the conviction be considered a misdemeanor for all purposes, alters existing rules regarding appellate jurisdiction. If the defendant was charged with at least one felony that was certified to the superior court under Penal Code section 859a, it is a felony case and appellate jurisdiction lies with the Court of Appeal, regardless of the outcome of that charge.id: 23987
Court of Appeal has jurisdiction where the offense was charged as a felony even if it was later reduced to a misdemeanor under Prop 47. The Court of Appeal has jurisdiction over an appeal from a case in which the defendant was originally charged as a felony, but the offense was later designated as a misdemeanor under Prop 47, or the defendant was resentenced as a misdemeanant under Prop 47.id: 23988
The Court of Appeal has appellate jurisdiction over a Wende appeal following a guilty plea to a misdemeanor originally charged as a felony.Defendant was charged with a felony drug count but pled guilty to a misdemeanor. Defendant later appealed the judgment but filed an opening brief alleging no errors but asking the court to review the record for errors. The brief is known as a “Wende brief.” The Court of Appeal rather than the appellate division of the superior court had appellate jurisdiction over the case.id: 23548
Restitution issue was not cognizable because defendant failed to file a separate notice of appeal from the restitution order.Defendant argued the victim restitution order filed five months after he filed the notice of appeal was improper because the court awarded restitution for expenses not attributable to his conduct. However, the claim was not cognizable because defendant did not appeal from the separately appealable victim restitution order.id: 23457
The denial of petition to recall a sentence under Prop 36's Three Strikes Reform Act is appealable. The denial of a petition to recall a sentence pursuant to Penal Code section 1170.126 (the Three Strikes Reform Act) is appealable as a postjudgment order affecting the substantial rights of the party. The petition was properly denied where the commitment offense (first degree burglary) was a serious felony.id: 23200
The trial court’s decision denying Prop 36 relief to an ineligible defendant was not an appealable order. Penal Code section 1170.126 was enacted as part of Prop 36, the Three Strikes Reform Act of 2012. The trial court in the present case denied defendant relief under the Act because his current sentence was based on a conviction of a serious felony - second degree robbery. The trial court’s decision is not an appealable order. id: 23336
Court needed to consider “arguable but unmeritorious” issue on Wende review.An appellate court conducting an analysis of a brief filed under the Wende/Anders procedure need not address issues that are “arguable but unmeritorious. id: 23693
After the prosecution dismissed the sole felony count and convicted defendant of three misdemeanors, appellate jurisdiction was in the appellate division of the superior court.Following a preliminary hearing, defendant was charged with one count of second degree robbery and two misdemeanors. The prosecutor later dismissed the felony count for lack of evidence, filed an amended misdemeanor complaint and convicted defendant of three misdemeanors at trial. The appeal was not properly before the Court of Appeal and was transferred to the appellate division of the superior court.id: 23384
The trial court’s denial of a request for compassionate release was not appealable. The trial court’s denial of the request for a recall of defendant’s sentence which was initiated by the Department of Corrections and Rehabilitation under the compassionate release provision set forth in Penal Code section 1170, subd.(e) was not an appealable order.id: 23203
Appellate counsel was removed by the court following a fourth unsuccessful try at filing a comprehensible opening brief. Defendant received the ineffective assistance of appellate counsel where appellate counsel tried four times to file an opening brief, and each time the brief was incomprehensible. The court took the unusual step of removing counsel and instructed the California Appellate Project to appoint new counsel assuming defendant qualified.id: 23362
Following defendant’s death, the abatement of proceedings order included the victim restitution issue. Defendant died while his appeal was pending and the court of appeal granted defendant’s request to direct the superior court to abate all pending proceedings in that court. The order included the victim restitution order.id: 22880
Section 1237.1 did not preclude defendant from raising a custody credits issue as the sole claim on appeal. Penal Code section 1237.1 does not preclude a defendant from raising, as the sole issue on the appeal, a claim that his or her custody credits were calculated to the wrong version of the applicable statute. id: 22941
Section 800 does not authorize an appeal from a deferred entry of judgment order, including its restitution component.The minor appealed from a juvenile court restitution order entered in conjunction with the court’s grant of deferred entry of judgment in his juvenile delinquency case. However, Welfare and Institutions Code section 800 does not authorize an appeal from a DEJ order, including is restitution component.id: 22965
Defendant was not entitled to a Wende review in an appeal from a postconviction proceeding.Defendant, a permanent resident, currently faces deportation following a 2007 conviction. He appealed from an order denying his motion to vacate the conviction. On appeal, his counsel filed a “no issues” brief pursuant to People v. Wende (1979) 25 Cal.3d 436. However, because this was an appeal from a postconviction proceeding, defendant was not entitled to Wende review. The appeal was dismissed. id: 22977
The order staying enforcement of the residency restrictions for registered sex offenders on parole was appealable. The trial court stayed the enforcement of Penal Code section 3003.5 as to all registered sex offenders on active parole in Los Angeles County pending resolution of previously filed habeas corpus petitions. The court’s ruling was similar to a preliminary injunction and was thus appealable. id: 22182
A defendant who has been deported is not like a defendant who is a fugitive, and the appellate court may not dismiss the appeal.An appellate court may dismiss the appeal of a criminal defendant who is a fugitive from justice. This appellate disentitlement doctrine does not apply to a defendant who has been deported from the country by immigration authorities. id: 21924
The trial court could not use a nonfinal appellate opinion to alter its procedures and influence the outcome of the matter before it.The trial court may not rely on a
nonfinal appellate opinion to shape the outcome of an ongoing proceeding in the same case.id: 21342
The appellate court should not rule on a defendant’s motion for constructive filing of a notice of appeal until the 15 day opposition period has expired. Trial counsel failed to file a timely notice of appeal despite defendant’s request to do so. In such a case, when the appellate court receives a notice of appeal after the deadline, it may be deemed constructively filed. However, where a defendant files a motion seeking constructive filing, the prosecution has 15 days to oppose the motion. The appellate court should not decide the motion until the 15 days have passed. In the present case, the prosecution demonstrated no prejudice from the premature ruling.id: 21279
The 60-day period to file to notice of appeal did not begin until the court mailed copies of its written order four days after the order was signed and filed.The warden appealed the superior court’s order granting an inmate performance points for classification purposes. The
notice of appeal was timely filed under California Rules of Court, rule 8.308 (a). A notice must be filed within 60 days after the rendition of judgment on the order being appealed was not announced in open court, but instead was embodied solely in a writing that was prepared, signed and
filed outside the presence of the parties, the making of the order does not occur until the court undertakes to communicate the substance of its order to the parties in some reasonable manner. That occurred here where the court mailed copies of the written order to the parties four days after the
order was signed and filed.id: 21055
Dedendant was entitled to a recall of the remittitur and his appeal was reinstated since it was dismissed following the neglect of his appellate attorney who told defendant’s family the appeal was pending for several years following the dismissal. The 1997 dismissal of defendant’ appeal resulted from neglect and misconduct by his appellate attorney. Relief was not sought sooner because that attorney consistently and plausibly misrepresented the status of the case to defendant through his father. Defendant was entitled to a recall of the remittitur so that his appeal could be determined on the merits.id: 20764
A direct appeal to the appellate division is authorized only if a defendant convicted after a trial by declaration has timely sought a trial de novo. Defendant was convicted, following a trial by written declarations, of speeding in violation of Vehicle Code section 22350. A defendant convicted after a trial by declaration may not take a direct appeal to the appellate division of the superior court. Rather, such an appeal is authorized only if the defendant is first convicted again following a trial de novo.id: 20704
Wende review is not required in an appeal from the denial of outpatient status pursuant to a petition for restoration of competency. Anders/Wende review is not required in an appeal from the denial of outpatient status pursuant to a petition for restoration of competency (Penal Code section 1026.2) if appointed appellate counsel represents he or she has found no arguable issue.id: 20303
The trial court exceeded its jurisdiction in dismissing a conviction while the case was pending on appeal, and defendant’s abandonment was of no effect. While the appeal was pending, the trial court granted defendant’s motion to recall the sentence pursuant to Penal Code section 1170,subd.(d), and thereafter dismissed the smuggling conviction. However, the trial court exceeded its jurisdiction in dismissing the smuggling charge, and once the record has been filed in the appellate court, appellant’s request to abandon the appeal is subject to the approval of the reviewing court, which it did not get in this case.id: 20486
The judicial review procedures adopted in Anders and Wende do not apply to MDOA proceedings.Appeals from civil commitments under the Mentally Disordered Offender Act are exempt from Anders/Wende review requirements.id: 20097
An appeal did not lie where defendant's motion in superior court was in the nature of a habeas corpus petition despite his later claim that he sought coram nobis relief.A defendant may not appeal the denial of a petition for writ of habeas corpus. Defendant argued his petition in superior court was a hybrid containing elements of both a habeas corpus petition and a petition for writ of error coram nobis, which is appealable. The fact issue involved the ineffective assistance of counsel for failing to advise of immigration consequences which is properly addressed by habeas corpus. However, he argued coram nobis was the appropriate vehicle for inquiry into the defendant's ignorance of the consequences of his plea. Notwithstanding defendant's claim, his petition in the superior court rested entirely on the ineffectiveness of counsel. He may not later transform the lower court proceedings in order to accommodate his possible appeal rights.id: 16320
Supreme Court allows interlocutory appeal of order showing forced medication to restore defendant's competency.By a 6-3 vote, the Supreme Court held that when a district court enters a pretrial order allowing the government to forcibly medicate an incompetent defendant solely to render the defendant competent to stand trial, the defendant may take a pretrial, interlocutory appeal of that order. The Court, in an opinion by Justice Breyer, held that such orders fell within the "collateral order" doctrine because the right to avoid forced medication would be lost if the defendant had to wait until after trial to appeal the order.id: 20153
Supreme Court finds no prejudice despite failure to advise defendant of right to appeal.In a unanimous opinion by Justice Kennedy, the Supreme Court held that a district court's failure to advise the defendant of his right to appeal does not entitle him to habeas relief if he knew of his right and hence suffered no prejudice from the omission. It was undisputed that the court's failure to give the required advice was error under Fed. R. Crim. P. 32. However, under <i>Hill v. U.S.</i>, 368 U.S. 424 (1962) and <i>U.S. v. Timmreck</i>, 441 U.S. 780 (1979) a defendant is not entitled to collateral relief merely because of a failure to comply with the formal requirements of the rules. In this case, the petitioner had full knowledge of his right to appeal and therefore he was not prejudiced. The court thus overruled cases in the Second, Eleventh and District of Columbia Circuits. Justices O'Connor, Stevens, Ginsburg and Breyer concurred separately.id: 15150
Wende/Anders procedures need not be extended to motions for new trial.After the verdict on counts 2 through 5, the trial court appointed separate counsel to investigate possible grounds for a motion for new trial. After reviewing the transcripts, counsel reported that he saw no grounds to support the motion. Defendant argued, on appeal, that the second lawyer was deficient for failing to file a new trial motion or a pleading consistent with People v. Wende (1979) 25 Cal.3d 436, or Anders v. California (1967) 386 U.S. 738. However, due process does not require extending the Wende/Anders procedures to motions for new trial.id: 19964
A defendant who takes advantage of the certified plea process after the magistrate denied a suppression motion cannot thereafter seek appellate review of the record.Penal Code section 859a authorizes the magistrate to accept a guilty or no contest plea from a defendant charged with a felony, then certify the case to the superior court for pronouncement of judgment. A defendant who takes advantage of this certified plea process after the magistrate has denied a motion to suppress at the preliminary hearing cannot thereafter seek appellate review of the magistrate's ruling on the search and seizure issue.id: 19921
Opinions in Wende appeals which raise no issues for review must describe and respond to the contentions raised by defendant after counsel's review. A "Wende appeal" (People v. Wende (1979) 25 Cal.3d 436) constitutes a "cause" within the meaning of article VI, section 14 of the California Constitution and therefore a Wende opinion must summarily describe and respond to any contentions raised by the defendant after counsel fails to find any arguable issues. Moreover, in light of Wende's requirement that the court review the entire record, the opinions must include a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted and the punishment imposed.id: 19351
Anders/Wende procedures do not apply to an appeal by an indigent person following an SVP recommitment order.The procedures under Anders v. California (1967) 386 U.S. 738, and People v. Wende (1979) 25 Cal.3d 436, allowing the court to review a record for arguable issues on appeal, do not apply to an appeal filed by an indigent person following a sexually violent predator recommitment order.id: 18816
Defendant's challenge to the order that he provide a DNA sample was not cognizable on appeal since the challenge did not affect the judgment of conviction.Defendant was convicted of receiving stolen property and his probation was revoked based on the same conduct. He argued the sentencing court improperly ordered him to comply with the DNA Data Bank Act of 1998, in violation of his Fourth Amendment rights. However, the claim was not cognizable on appeal since the attack on the order cannot affect the validity of his conviction and sentence or relieve him of the mandatory requirements of the DNA Act. Nor could a successful Fourth Amendment challenge to the order bring him the injunctive relief he sought.id: 18616
Defendant, who entered into a plea bargain where he received probation and waived his right to appeal, could not later appeal after he violated his probation.Defendant pled guilty to a drug offense in 2003, where he agreed to waive his right to appeal in light of the grant of probation. Several months later he violated his probation. He thereafter appealed the original conviction claiming he should have been sentenced to probation and drug treatment under Proposition 36. However, defendant received the benefit of probation and dismissal of a charge that could have disqualified him from Prop 36 probation, on condition that he waive his right to appeal. He may not seek to recast the terms of his plea on appeal after violating the terms of his probation.id: 18555
The appeal following the misdemeanor conviction should have gone to the appellate division of the superior court.The complaint included a felony and two misdemeanors. After the preliminary hearing, the magistrate held defendant to answer only on the misdemeanors. After the jury convicted defendant of one count, defendant filed a notice of appeal in the superior court. The superior court clerk erroneously directed the case to the Court of Appeal. The case was transferred to the appellate division of the superior court.id: 18471
The prosecution properly raised the issue of an unauthorized sentence in the defendant's appeal.The prosecutor argued in the defendant's appeal that the trial court imposed an unauthorized sentence when it struck the special circumstance finding as the ruling violated Penal Code section 1385.1. Defendant argued the prosecution needed to appeal in order to challenge the order. However, the sentence was unauthorized. Accordingly, the prosecution could properly raise the issue without objecting on the same ground in the trial court and without separately taking its own appeal.id: 18075
Appellate court form sent to ascertain whether counsel wished to waive oral argument was improper as it suggested the case was final and counsel might face adverse consequences if oral argument was requested.The Fourth District Court of Appeal, Division Two (Riverside), sent a regular notice in attempting to determine whether appellate counsel wished to waive oral argument. However, the notice used, too strongly suggested that the court had finally decided the case, and that appellate counsel might face adverse consequences if oral argument was suggested. As such, the notice had a real potential to interfere with a party's proper exercise of the right to present oral argument on appeal. The court was directed to refrain from using that particular waiver notice in future cases.id: 17739
Pending the resolution of an appeal the trial court retains jurisdiction to supervise a probationer and to punish probation violations.The minor argued the notice of appeal challenging the denial of his suppression motion divested the juvenile court of jurisdiction to proceed to disposition. However, pending the resolution of an appeal, the trial court retains jurisdiction to supervise a probationer and to punish a violation of any probationary conditions.id: 17198
Denial of a discovery motion was not cognizable on appeal following a guilty plea since it did not go to the legality of the proceedings and there was no suppression motion.Defendant appealed the denial of his motion for discovery of information about the confidential informant upon whom officers relied in obtaining the search warrant. Although defendant obtained a certificate of probable cause under Penal Code section 1237.5, he failed to bring a motion to suppress the evidence in the trial court before he pleaded guilty. Defendant's challenge was not cognizable on appeal because the claimed error of the denial of his discovery motion did not go to the legality of the proceedings and defendant failed to move to suppress the evidence under Penal Code section 1538.5, subd. (m).id: 16880
A misdemeanant who fled the court's jurisdiction to escape a jail term forfeited his right to appeal the conviction.Defendant was convicted of drug possession and successfully moved to have the convictions reduced to misdemeanors. The prosecution appealed the reduction. Defendant cross-appealed challenging the underlying convictions. However, defendant fled to Canada because incarceration without access to medical marijuana would be life-threatening. Because of defendant's status as a fugitive from justice, he forfeited his right to appeal the convictions.id: 16754
An order denying a request for resentencing is appealable regardless of the court's stated reasoning.Defendant sought to create an appealable order by sending the sentencing court a letter asking the court to strike in the "interest of justice" portions of a completed sentence imposed 15 years earlier. He argued that he had the right to appeal because the superior court in the old case failed to recognize its power to dismiss nunc pro tunc, the charges it long ago stayed. He claimed that even though he had no right to move for dismissal, he had a right to a hearing on the nonmotion, and even though he had no right to challenge the court's adverse decision, he could appeal the court's articulated reasons for deciding adversely without a hearing. However, an order denying defendant's request for resentencing is not appealable regardless of the court's stated reasons.id: 16321
California's "Wende brief" procedure adequately safeguards a defendant's right to appellate counsel.In <i>Anders v. California</i> (1967) 386 U.S. 738, the U.S. Supreme Court held that where an appointed appellate attorney reviews the record and concludes an appeal would be frivolous, he or she must still list possible appellate issues. California adopted a different system in <i>People v. Wende</i> (1979) 25 Cal.3d 436, whereby appellate counsel may file a brief without listing any issues and essentially ask the court to determine whether there are any viable appellate issues. In the present case, the Court held that California's departure from the <i>Anders</i> procedure is not unconstitutional. The states are free to adopt different procedures as long as they adequately safeguard a defendant's right to appellate counsel.id: 16322
Court of Appeal urges review of Wende procedure after finding no arguable issues following a guilty plea.Appellate counsel filed opening briefs in two consolidated cases in which he raised no issues and asked the court for an independent review pursuant to <i>People v. Wende</i> (1979) 25 Cal.3d 436. The Court of Appeal found no arguable issues and suggested the <i>Wende</i> procedure should be reviewed by the Supreme Court.id: 16323
Denial of habeas petition may not be appealed even where the superior court issued an OSC or held an evidentiary hearing.A defendant may not appeal the denial of a petition for writ of habeas corpus. There is no exception to this rule in cases in which the superior court issued an order to show cause or held an evidentiary hearing before denying the habeas relief.id: 16324
Superior Court clerk erred in filing a notice of appeal 13 years after the judgment.The notice of appeal was filed almost 13 years after the judgment was imposed. The superior court clerk erred under Penal Code section 1239 and California Rules of Court, rule 31(a), in filing the untimely notice.id: 16326
Defendant has no constitutional right to self representation on appeal.There is no constitutional right to self-representation on the initial appeal as of right. The right to counsel on appeal stems from the Due Process and Equal Protection Clauses of the Fourteenth Amendment, not the Sixth Amendment, which is the foundation on which <i>Faretta</i> is based. The denial of self-representation at this level does not violate due process or equal protection guarantees.id: 15903
Orders of dismissal under the IAD are properly reviewed on appeal.Defendant argued that although orders of dismissal before trial are ordinarily appealable, order of dismissal under the Interstate Agreement on Detainers (codified in Penal Code section 1389) should only be reviewed by extraordinary writ since the purpose of the Act was to promote speedy trials. However, orders of dismissal for violations of a defendant's speedy trial rights are routinely review by appeal.id: 15833
In an appeal following a limited remand, the scope of the issues before the court is determined by the remand order.On the defendant's second appeal, following a remand to allow the trial court to exercise its discretion on a <i>Romero</i> motion (to dismiss a strike prior) defendant argued the trial court's use of a prior burglary conviction to both elevate his petty theft to a felony and to invoke the three strikes law violated due process and double jeopardy principles. However, defendant was precluded by the nature of the limited remand from challenging his sentence in any other respect.id: 15117
Upon discovery of an error, the Court of Appeal should order the trial court to correct an abstract of judgment.If, during the course of a criminal appeal, the Court of Appeal discovers a discrepancy between the trial court's judgment and the abstract of judgment, the Court of Appeal should order the trial court to correct the abstract of judgement. The court erred in the present case by directing the Attorney General to ask the clerk of the trial court to make the correction.id: 15118
Defendant's plea agreement for a specific sentence precluded his appellate claim alleging "sentencing error".Defendant did not obtain a certificate of probable cause, and his notice of appeal stated that his appeal was limited to claims that the court "committed sentencing error." However, defendant could not challenge his sentence because he agreed to accept it as part of his plea bargain.id: 14702
Failure to file a verified statement of grounds for appeal precluded review of issue as to whether the court was required to develop a record setting forth the factual basis for the pleas.When defendant entered his guilty pleas, the parties stipulated to there being a factual basis for the pleas. Defendant argued the trial court erred in failing to develop a record setting forth the factual basis for the pleas and, consequently, should be permitted to withdraw the pleas. However, defendant failed to file a verified statement of grounds for appeal as required by Penal Code section 1237.5 and the issue was therefore not properly before the appellate court.id: 14704
Incarcerated defendant who waited until the last day to place his notice of appeal in the prison mail system was not entitled to relief.Defendant sought an order relieving him from the consequences of his failure to file a notice of appeal with the clerk of the Superior Court within the time permitted. However, in the absence of some showing that delay in presenting a notice of appeal to the county clerk is attributable to negligence or inaction on the part of custodial officials, a dereliction of duty by counsel, or some other cause not the fault of the party seeking appeal, relief is not available.id: 14707
Notice of appeal in abandonment cases must be filed within 60 days after the entry of judgment.Appellant filed a notice of appeal 61 days after the notice of entry of judgment was served. The notice which was one day late was untimely and the doctrine of constructive filing should not be applied to abandonment cases under Civil Code section 232.id: 14708
Notice of appeal must be accompanied by a verified statement demonstrating grounds for appeal.Defendant's notice of appeal stated that the court erred in denying his motion to withdraw the plea. The notice was not accompanied by any other statement and was not executed under oath or penalty of perjury as required. While the notice of appeal purported to be filed in pro per, it was in fact signed by defendant's retained counsel. Because counsel failed in his duty to assist competently in filing the notice of appeal defendant was entitled to an order relieving him from his deficient notice of appeal. However, in addressing the merits the only reason given for the alleged erroneous failure to grant the motion to withdraw the plea was that defendant was given only five to ten minutes to consider the plea offer. Defendant's failure to request additional time to consider the plea established a failure to show good cause for withdrawal of the plea.id: 14709
Notice of appeal was deficient in failing to include a statement showing grounds.Defendant's notice of appeal failed to comply with Penal Code section 1327.5 in that it did not include a written statement, executed under oath or penalty of perjury showing reasonable, constitutional, jurisdictional or other grounds going to the legality of the proceedings. When a defendant fails to satisfy the requirements of that section and rule and the record discloses no justification for that failure, the appeal is not operative and the appropriate disposition is dismissal. This is particularly appropriate where, as in the instant case, defendant raised the appellate issues on a prior writ petition and then voluntarily withdrew that petition to gain the benefits of a plea bargain.id: 14710
Parents may not contest the applicability of section 300(e) after they pleaded "no contest" to that allegation at the jurisdiction hearing.Parent who plead "no contest" to a petition alleging their child falls within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivision (e), may not subsequently assert on appeal that their conduct does not fall within that section.id: 14712
Supreme Court says Eighth Circuit improperly based habeas relief on a new rule.After a Missouri prisoner's state appeal was dismissed because she became a fugitive, she sought federal habeas relief, arguing that Missouri's fugitive dismissal rule violated due process. The state argued that a ruling in petitioner's favor would create a new rule of law, and was therefore barred by <i>Teague v. Lane</i>, 489 U.S. 288 (1989). The Eighth Circuit ruled that the state had waived the <i>Teague</i> claim, and held that the fugitive dismissal rule violated substantive due process. The Supreme Court reversed, ruling that because there was no substantive due process right to an appeal before the Eighth Circuit's opinion granting habeas relief, the Eighth Circuit could not grant habeas relief based on a new rule of law.id: 14714
Trial court exceeded its jurisdiction by granting appellant's motion to deem the judgment entered as of October 25, in an attempt to revive the time with which to file a notice of appeal.Appellant failed to file a timely notice of appeal following his conviction because the judgment was entered on August 17, 1988, and the notice of appeal had to be filed within 30 days of that date. The trial court exceeded its jurisdiction by granting appellant's motion to deem the judgment entered as of October 25, in an attempt to resuscitate the time with which to file an appeal. However, the court treated the matter as a writ of habeas corpus in the interest of judicial economy and efficiency.id: 14716
Trial court was entitled to rely upon defendant's written waiver of his right to appeal the denial of his suppression motion.Defendant's motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. He subsequently entered into a negotiated plea bargain where he specifically waived his right to appeal the denial of the suppression motion. Defendant argued the record was hopelessly inadequate to establish that he knowingly waived his appeal rights because he was not examined by the trial court regarding this particular right. However, absent evidence to the contrary, the trial court was entitled to rely upon defendant's written waiver.id: 14717
When accepting a transfer of a case from the appellate department under rule 62(a) the Court of Appeal considered a single issue and not all issues raised below.Defendant was convicted of drunk driving following a jury trial in municipal court. He appealed to the appellate department of the superior court, raising four distinct issues. The appellate department affirmed the judgment, but reversed the prior conviction and ordered remand for retrial on the prior only. Defendant applied to the Court of Appeal for certification of the case pursuant to California Rules of Court, rule 62(a), claiming retrial on the prior was barred by double jeopardy. The Court of Appeal granted the transfer and defendant filed a brief containing the same four contentions he originally raised with the appellate department. In interpreting rule 62(a), the Court of Appeal only considered the question as to whether the appellate department committed reversible error in remanding the case for retrial of the truth of the prior.id: 14719
Record was utterly devoid of support for appellant's claim that his Shasta County plea was negotiated in exchange for a specific disposition of the Trinity County case.Appellant argued he pleaded guilty and admitted the probation violation in Shasta County in reliance on an implied promise of probation termination and no additional time on the Trinity County offense. Finding the record was utterly devoid of support for the claim, the court sharply criticized the practice of appointed appellate counsel in raising frivolous issues on appeal.id: 14695
A defendant must move to have lost exhibits reconstructed before he can contend on appeal that they were insufficient to sustain the verdict.Defendant argued reversal of his conviction was required because the trial court lost important exhibits, including the knife used in the assault and the documents relating to his prior convictions. However, a defendant must move to have lost exhibits reconstructed before he can contend on appeal that they were insufficient to sustain the verdicts.id: 14696
Court of Appeal asked the Supreme Court to re-examine the vitality of the Wende doctrine.The Court of Appeal reviewed the case pursuant to <U>People v. Wende</U> (1979) 25 Cal.3d 436, and determined there were no errors. However, the court discussed the <U>Wende</U> doctrine at great length and appealed to the California Supreme Court to re-examine the vitality of the doctrine.id: 14698
Defective notice of appeal precluded appellate review of claims regarding competency of counsel prior to the admission of a probation violation.Appellant argued defense counsel was incompetent for failing to investigate the validity of his underlying nolo contendere plea, which he argued was invalid because he was not advised that as a consequence thereof he would have to register as a narcotics offender. However, since the notice of appeal was not executed under oath or penalty of perjury, Penal Code section 1237.5 precluded review of the claim.id: 14699
Defendant may not extend the time for filing a notice of appeal by asking the court to resentence him to the same sentence he originally received.The trial court did not recall defendant's sentence for a reason rationally related to lawful sentencing. Instead, the court recalled the sentence for the sole purpose of permitting defendant to file a notice of appeal after he had failed to do so within the period provided by law. The court lacked jurisdiction to recall the sentence and abused its discretion in doing so. Therefore, the recall and reimposition of sentence was not a final judgment of conviction within the meaning of Penal Code section 1237 and had no legal effect.id: 14700
Defendant's failure to comply with rule 31(d) regarding the post-plea imposition of probation conditions precludes consideration of the issues on appeal.Defendant argued the trial court improperly imposed fees as conditions of probation by failing to make a determination of defendant's ability to pay or to pronounce them in oral argument. However, the issue cannot be entertained on appeal because defendant's notice of appeal failed to comply with the requirement of California Rules of Court, rule 31(d) that the grounds upon which the appeal is based must be stated in the notice of appeal.id: 13610
Court has authority to confirm indigency before appointing appellate counsel.Rule 185.5 of the California Rules of Court does not require the appellate department of the superior court to conclusively presume a misdemeanor appellant is indigent for purposes of appointing appellate counsel if he was found indigent and represented by appointed counsel in the trial court. The court has specific authority to confirm the claimed indigency. The presumption of indigency was rebutted in the instant case by the financial statement indicating the family income and monthly expenses.id: 12243
Juvenile court lacked jurisdiction to vacate its judgment once the case was with the Court of Appeal.Defendant was tried first in juvenile court and then in adult court for the same offense. While the case was on appeal the juvenile court conducted a hearing to determine defendant's true age, found him to be an adult, and vacated the juvenile court judgment. However, because the case was on appeal and thus within the jurisdiction of the Court of Appeal, the juvenile court lacked jurisdiction to vacate the juvenile court judgment. Even if the juvenile court had jurisdiction to vacate its judgment the order was not valid because defendant was denied his right to counsel at the hearing where his age was decided and the judgment vacated.id: 12056
When defendant entered his no contest plea he waived his right to appeal the denial of his suppression motion.Following the denial of his motion to suppress evidence, defendant entered a negotiated plea of no contest to the charges. Placed on probation for three years, he appealed, challenging the denial of his suppression motion. However, because defendant freely, knowingly and intelligently waived his right to appeal, the merits of the suppression motion were not cognizable.id: 11832
Court refused to consider the alleged sentencing errors where defendant waived his right to appeal and received the 30 year term he bargained for.Defendant was charged with numerous violent crimes and faced a maximum possible term of 83 years to life. He bargained for a 30 year term and received it. He also waived his right to appeal. On appeal he raised several issues related to the sentence and argued the waiver of the right to appeal does not extend to sentences not imposed in accordance with a negotiated agreement or where other sentencing error occurs. However, defendant received the benefit of his bargain. Even if reversible error was found in the sentence, the court had 28 other stayed counts by which it could have reached 30 years and reversal would therefore have been an exercise in futility.id: 11484
Defendant proceeding in pro per, waived his right to appeal the conviction as part of the plea bargain.As part of a plea bargain, defendant expressly waived his right to appeal the conviction. He represented himself and argued his wavier was not knowing and voluntary because he did not understand that forfeiting his right to appeal included the continuance and right-to-counsel issues. However, the record revealed defendant understood he had the right to appeal and that he was giving it up for certain benefits. His waiver of the right to appeal was knowing and voluntary and he was bound by the agreement.id: 11487
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245