Appeals by the Prosecution
Category > Appeals by the Prosecution
Updated 2/26/2024Trial court’s finding that defendant was eligible for resentencing under Prop 36 was not appealable by the prosecution. The prosecution appealed the trial court’s finding that defendant was eligible for resentencing under the Three Strikes Reform Act. However, the eligibility determination did not affect the substantial rights of the People by altering the underlying judgment, its enforcement or the defendant’s relationship to it. The order was thus not appealable under Penal Code section 1238, subd.(a)(5).id: 26381
Updated 2/4/2024Prosecution could not appeal the pretrial ruling reducing the attempted dissuasion count from a felony to a misdemeanor.The prosecution charged one count of attempting to dissuade a witness from testifying under Penal Code section 136.1(a). The matter languished for 21 months and before trial began, the court granted the defense request to reduce the charge to a misdemeanor. The prosecution did not have a right to appeal that order.id: 27603
The trial court’s order finding defendant factually innocent after granting his habeas petition was not appealable by the prosecution.Defendant filed a habeas corpus petition challenging his 1995 murder conviction. After a 10-day evidentiary hearing, the court granted his petition. The court later granted his claim under Penal Code section 1485.55 allowing a person whose habeas corpus petition was granted to be found factually innocent. The District Attorney appealed arguing section 1485.55 should not be applied retroactively and there was insufficient evidence to support the factual innocence finding. However, the trial court’s order granting the section 1485.55 motion was not appealable by the prosecution. id: 24065
Prosecution forfeited standing issue by not raising it at the suppression hearing.The defense successfully moved to suppress evidence taken during the search of the vehicle after an arrest. As part of the prosecution’s appeal, it argued that one defendant had no reasonable expectation of privacy in the contents of the other defendant’s cell phone. However, when opposing the suppression motion in the trial court, the prosecution failed to make that argument, so the issue was forfeited on appeal.id: 22397
A dismissal by a magistrate on the ground of preaccusation delay terminates the proceedings and is an order that must be appealed from or it becomes final.Before the preliminary hearing, the magistrate dismissed the felony complaint on the constitutional ground of unreasonable preaccusation delay. The prosecution refiled. The magistrate dismissed the new complaint on the grounds that its earlier order of dismissal amounted to a dismissal with prejudice precluding further prosecution and that the prosecution did not appeal the initial order. Because the prosecution failed to appeal the original order or asked for reinstatement of the complaint the initial dismissal order was final and presumptively correct.
id: 18496
Prosecutor's appeal was operative to review an order dismissing a charge but not one granting probation and the Court of Appeal erred in ruling on an issue not briefed by both parties.The Court of Appeal violated Government Code section 68081 by
holding that the People's appeal was authorized under Penal Code section 1238, subd.(a)(10) as an appeal from an unlawful sentence, because the parties had neither proposed nor addressed this issue in their briefs. The Court of Appeal compounded the error by denying defendant's petition for rehearing on that basis. Moreover, the appeal from the order setting aside one count of the information under Penal Code section 995 was authorized by Penal Code section 1238,subd.(a)(1), which permits the prosecutor to appeal from an order setting aside a portion of an information, but no appeal lies from the court's purported order granting probation.id: 19725
People failed to preserve the issue of the purported denial of their right present evidence.The contention that the prosecution denied its right to present all relevant evidence may not be raised for the first time on appeal.id: 14737
Prosecution may not challenge the allegedly unauthorized sentence imposed by the municipal court in a misdemeanor case.Defendant concrete company was convicted of violating Vehicle Code section 35551, which prohibits operating a vehicle over a certain weight without a permit. The municipal court imposed a fine of $482. The People appealed arguing the fine should have been greater. Under the circumstances, the People may not challenge the allegedly unauthorized sentence imposed by the municipal court in a misdemeanor case, either by appeal or extraordinary writ.id: 14742
The prosecution may not appeal an order granting probation.The prosecution appealed the trial court's order granting probation. However, Penal Code section 1238, subdivision (d) unambiguously precludes appellate review of an order granting probation and the prosecution's remedy is to seek review by writ.id: 14745
Prosecution could not appeal the reduction of a wobbler to a misdemeanor following plea where no writ of mandate was filed within 60 days of the grant of probation.Trial court granted defendant's motion to treat the theft offenses to which defendant pled no contest as misdemeanors pursuant to Penal Code section 17, subdivision (b). The prosecution appealed arguing that once defendant pled no contest to a wobbler charged as a felony the court was powerless to reduce the offense under section 17. However, the prosecution had no right to appeal. Since the prosecution sought review of an order underlying the grant of probation it was required to file a petition for a writ of mandate or prohibition within 60 days after the trial court granted probation pursuant to section 1238, subdivision (d). The failure to do so required dismissal of the appeal.id: 9456
Courts order granting probation and declaring the wobblers to be misdemeanors was not appealable by the prosecution.The prosecution appealed from an order of the trial court suspending imposition of defendants sentence, granting probation, and declaring the charged offenses to be misdemeanors pursuant to Penal Code section 17, subdivision (b). However, the courts order was not appealable and the appeal was dismissed.id: 16335
The state waived its right to challenge the sentence by failing to appeal since the sentence was not unauthorizedIn responding to defendant's appeal the Attorney General argued the trial court erred in failing to impose a 25 years to life sentence under Penal Code section 667.61, subdivisions (a), (c)(1), and (d)(4). Those provisions require a 25 years to life-term for a person convicted of rape during the commission of a residential burglary. The trial court relied on its view of the facts in determining the mandated sentence to be cruel and unusual. The sentence here was not "unauthorized." The People waived their right to challenge the sentence by failing to appeal.id: 16339
Prosecution had no statutory basis to appeal the order granting the petition to seal defendant's juvenile court records pursuant to Welfare and Institutions Code section 781.The prosecution sought to appeal an order granting defendant's petition to seal his juvenile records pursuant to Welfare and Institutions Code section 781. It claimed the trial court erred by concluding amendments to section 781, enacted in 2000 pursuant to Prop 21, did not apply to preclude sealing of juvenile records relating to defendant's Penal Code section 288, subd.(b) offense in 1995. The court concluded that application of the 2000 amendment would violate state and federal equal protection and ex post facto principles. However, the order was not appealable under Welfare and Institutions Code section 800, which provides the exclusive basis for the prosecution's appeal of juvenile court orders and judgments. The court nevertheless treated the attempted appeal as a petition for writ of mandate and granted the petition. id: 17129
Superior court order limiting the defense access to jurors was not appealable by the prosecution.After defendant was sentenced to death, the Supreme Court appointed appellate counsel to handle the direct appeal, and the Habeas Corpus Resource Center was later appointed to handle habeas corpus proceedings. Thereafter, the prosecution filed a motion to restrict juror access by the defense. The superior court granted the motion in part, holding that any contact must be subject to the rules set forth in Code of Civil Procedure section 206. The prosecution appealed the order arguing it did not go far enough. However the order appealed from is not an appealable order within the meaning of Penal Code section 1238, subd. (a)(5) since it does not affect the substantial rights of the People.id: 16843
The denial of the prosecution's motion to bar the defense from contacting jurors was a non-appealable order.The prosecution appealed from the denial of its motion to bar the defense from contacting jurors without prior court approval and good cause. The court dismissed the appeal as one from an non-appealable order because it did not affect the substantial rights of the People.id: 16771
The prosecution is not entitled to writ review of a trial court's denial of a Kelly-Frye hearing on the admissibility of scientific evidence.Writ review is not available to the prosecution to challenge the trial court's denial of its motion for a Kelly-Frye hearing on the admissibility of certain scientific evidence proposed by the defense. Assuming the court erred in reaching its decision, this type of error does not constitute an act "in excess of the court's jurisdiction" and thus is not one of the exceptional situations in which the prosecution is entitled to writ review.id: 18942
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
Trial court was without authority to reconsider its previous order granting a new trial, but the People were permitted to appeal the order under the constructive filing doctrine.Following his conviction, defendant moved for a new trial arguing that prejudicial testimony had been erroneously admitted. The People filed no written opposition to the motion and the court held their inaction constituted acquiescence in defendant's motion. The new trial motion was granted. The court then granted the People's motion for reconsideration based on excusable neglect under Code of Civil Procedure section 473, and concluded the testimony was not sufficiently prejudicial to warrant a new trial. The trial court was without authority to reconsider its previous order granting a new trial. However, the Court of Appeal reinstated the People's appellate rights under the doctrine of constructive filing and found that under the circumstances, the People's failure to file an appeal written the 60-day time limit was not fatal.id: 12137
Updated 1/31/2024Prosecution may appeal post-prelim order reducing a felony “wobbler” to a misdemeanor.Penal Code section 1238(a)(1) and (a)(8) permit the prosecution to appeal a superior court’s post-preliminary hearing pretrial order reducing a felony “wobbler” to a misdemeanor because the order is unauthorized and tantamount to a dismissal of the felony offense.id: 28057
The prosecution could appeal the order directing specific performance of the plea agreement.Defendants argued the trial court's order directing specific performance of the plea agreement was not appealable by the prosecution. However, when the court ordered specific performance, it dismissed all pending charges and amended the complaint to include another charge. The order compelling specific performance thus had the effect of "setting aside all or any portion of the complaint" under Penal Code section 1238,(a)(1). Accordingly, the prosecution was entitled to appeal under section 1238(a)(1).id: 18939
The trial court lacked the authority to terminate parole on an old case when sentencing defendant to prison in a new case.Defendant was on parole in one case when was sentenced to prison in another case. The trial court lacked the authority under Penal Code section 1385 to terminate parole in the first case. The prosecution had the statutory authority to appeal the trial court’s order terminating the parole under section 1385.id: 24926
The trial court erred by arbitrarily selecting a low restitution amount for the workers comp fraud and the issue was appealable by the prosecution.Defendant was convicted of multiple counts of workers comp fraud in violation of Insurance Code section 11880. The trial court abused its discretion at the restitution hearing by awarding the insurance company $500,000 of economic loss where the evidence showed a greater amount. The court failed to consider all of the evidence on the issue an arbitrarily selected the amount. The issue was properly appealed by the prosecution given the state’s interest in ensuring that victim restitution laws be properly enforced.id: 23294
The juvenile court erred by ignoring the terms of the plea bargain and imposing a less restrictive disposition. Pursuant to a stipulated agreement, the minor admitted allegations of attempted robbery and criminal threats, and the remaining charges were dismissed. The disposition also called for the minor to be placed in the Youthful Offender Program at the Indio Juvenile Hall. However, the court ordered a different less restrictive disposition. The juvenile’s court’s order was appealable, and erroneous because it ignored the provision that was material to the prosecution’s part of the plea bargain.id: 23363
The prosecution could properly appeal from the juvenile court’s substitution of charges to facilitate a plea bargain. To facilitate a plea agreement, the juvenile court improperly dismissed one count and added another. The minor argued the prosecution’s subsequent appeal should be dismissed because it was aimed at an order that underlied the court’s decision to grant probation. However, the prosecution did not appeal from an order granting probation. It appealed from an order substituting charges and allowing the minor to admit the new allegation as part of a plea bargain.id: 22242
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
Defendant convicted of lewd acts with 14-15 year olds was not similarly situated with a defendant convicted of oral copulation with 16-17 year olds as in Hofsheier.After defendant pled no contest to six counts of lewd acts with 14 or 15 year olds at least 10 years younger (Penal Code section 288(c)(1)) he argued successfully that the imposition of mandatory sex offender registration violated his equal protection rights as described in People v. Hofsheier (2006) 37 Cal.4th 1185. First, the matter is an appealable postjudgment order under Penal Code section 1238, subd.(a)(5). Next, there was no equal protection violation because defendant facing the present charges was not similarly situated with those convicted of oral copulation of a 16 or 17 year-old victim as in Hofsheier.id: 21106
Court erred in reducing a 1994 sentence by one day nunc pro tunc in order to avoid deportation.In 1994 defendant pled guilty to drunk driving with three prior convictions. As a condition of probation, he was required to serve 365 days in local custody. In April of 2000, after he had served his 365 days and his probation expired, he filed a motion to reduce his sentence nunc pro tunc to 364 days. He argued he had not been fully advised of the immigration consequences at the time he entered the plea. The trial court erred in modifying the sentence to 364 days nunc pro tunc to the date of the original sentence in order to avoid deportation. The case did not involve a clerical error and the nunc pro tunc order cannot be used in order to change a sentence. Since the order was in excess of the trial court's jurisdiction and affected substantial rights, the order was appealable by the prosecution.id: 16638
The prosecution may appeal the trial court's decision to impose a misdemeanor sentence for a wobbler offense.A superior court judgment imposing a misdemeanor sentence for a "wobbler" offense is "an order... modifying the offense to a lesser offense" under Penal Code section 1238, subd.(a)(6), and thus an order from which the prosecution may appeal.id: 16931
The District Attorney's effective concession to the granting of the petition discharging defendant's sex offender registration obligation did not constitute a forfeiture preventing the Attorney General from challenging the order.The trial court granted defendant's habeas corpus petition discharging his duty to register as a sex offender under Penal code section 290 and removing his identity from a sexual offender database. The District Attorney withdrew his opposition thereby effectively stipulating to the action. However, the District Attorney's action did not constitute a forfeiture of the issue on behalf of the state and the Attorney General could oppose the action. Moreover, the Attorney General was not estopped in any other manner from challenging the order.id: 19680
An in limine ruling may be reviewed on appeal from a dismissal.Defendant was a public official charged with a conflict of interest violation. The trial court ruled in limine that she could assert a defense of entrapment by estoppel. The prosecution then said it could not proceed and the case was dismissed. On appeal from a pretrial dismissal, the prosecution may obtain review of a ruling that assertedly rendered it unable to proceed.id: 19435
Prosecution can appeal ruling that the prior conviction was not a strike. The prosecution may appeal from a judgment pursuant to Penal Code section 1238, subd.(a)(10) governing the imposition of an unlawful sentence, on the grounds that defendant's sentence was
unlawful because the trial court erred in ruling that the alleged prior conviction was not a strike.id: 19365
Terry does not support a pat search for identification.Terry v. Ohio (1968) 392 U.S. 1, allows the police to perform a pat search for weapons where there is reason to believe the person is armed and dangerous. However, Terry does not support a pat search of a person for identification.id: 19366
The Court of Appeal had jurisdiction to consider the state's appeal from the juvenile court's granting of the minor's new trial motion since the minor waived jeopardy by challenging the court's original ruling.The juvenile court sustained the petition. Before the disposition hearing, the minor moved for a new trial based on a new Miranda-related U.S. Supreme Court ruling. The court granted the new trial motion and the prosecution appealed. The minor argued the appellate court lacked jurisdiction to hear the appeal under Welfare and Institution's Code section 800, subd.(b)(4), because jeopardy attached when the first witness was sworn and he never waived jeopardy. However, by attacking the juvenile court's initial findings as to whether he was in custody while questioned, he impliedly waived jeopardy.id: 18786
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
The trial court's order reducing the murder conviction to voluntary manslaughter was appealable by the prosecution and reinstating the jury's verdict did not violate double jeopardy rule.The trial court reduced the second degree murder conviction to voluntary manslaughter based on heat of passion. The order reducing the crime was appealable by the prosecution, and did not violate double jeopardy principles.
id: 17649
Prosecution may appeal from an order granting deferred entry of judgment.The trial court's order granting a defendant a deferred entry of judgment under Penal Code section 1000 was an order that was appealable by the prosecution.id: 16845
A post-conviction section 1385 dismissal for insufficiency of the evidence may be appealed by the prosecution.A jury convicted defendant of misdemeanor child abuse under Penal Code section 273a, subd.(b). However, the trial court dismissed the case for insufficient evidence under section 1385. The court's order was appealable by the prosecution.id: 16705
Order granting writ of error coram nobis was appealable where defendant was sentenced before he sought to withdraw his plea.The order granting defendant's petition for a writ of error coram nobis is an order after judgment which is appealable by the prosecution under Penal Code section 1238, subd.(a)(5), because the defendant was sentenced before he sought to withdraw his plea. On appeal, the court rejected defendant's claim that he was not effectively sentenced because the court merely stated an indicated sentence was contingent on his return to court at a later date.id: 16336
Prosecution may appeal the reduction of a wobbler to a misdemeanor under section 17, subdivision (b)(3) where there was no challenge to the grant of probation.The prosecution was authorized to appeal a superior court's order, made immediately after imposition of sentence was suspended and probation granted, declaring an alternative felony-misdemeanor offense to be a misdemeanor under Penal Code section 17, subdivision (b)(3). Neither the language of section 1238, subdivision (d), nor its purpose require that the appeal be barred. The prosecution did not appeal from an order granting probation, but from a separate order declaring the offense to be a misdemeanor. Neither did the prosecution implicitly appeal from the grant of probation by seeking its reversal in their appellate briefs. The appeal therefore poses no direct threat to defendant's probation and thus could not result in his facing the unfair consequence of being committed to prison after having served all or part of his probationary period while the appeal was pending.id: 16337
Since the trial court dismissed the case prior to trial (after granting the suppression motion) the matter could be appealed by the prosecution.Penal Code section 1238, subdivision (a)(7) allows the prosecution to appeal an order dismissing the case prior to trial. The trial court in the instant case, pursuant to section 1538.5, subdivision (l) granted the motion to quash the search warrant and suppress evidence. The court also granted the motion to dismiss the case at that time, although the dismissal could have been ordered later. Since the court dismissed the matter prior to trial, the order was appealable by the prosecution.id: 16338
The prosecution may appeal the trial court's "not true" finding of a prior conviction which was based on the absence of proof of a Boykin-Tahl waiver.A "not true" finding of a prior conviction allegation is not an acquittal. Therefore, the prosecution may appeal the court's order effectively striking the alleged prior conviction.id: 15121
A trial court's post-conviction dismissal for lack of evidence is appealable and retrial does not violate double jeopardy.A trial court's post-conviction dismissal of a jury's verdict based on insufficiency of evidence is an appealable order. That judgment may be entered on that underlying jury verdict without violating the state or federal prohibition against double jeopardy.id: 14980
People can appeal a pretrial order striking a prior drunk driving conviction.Pursuant to the Penal Code section 1466, the People may appeal before judgment an order striking a prior conviction in a drunk driving case prosecuted in an inferior court.id: 14736
People have the right to appeal the juvenile court's ruling sustaining the demurrer as to the Penal Code section 12022.1 allegation of the subsequent ward petition.The prosecution has a right to appeal an order by the juvenile court sustaining, without leave to amend, a demurrer to an enhancement allegation pled in a petition brought under Welfare and Institutions Code section 602.id: 14738
People may appeal a court order dismissing part of an information but petition for writ of mandate was proper in the instant case.A court order dismissing part of an information is appealable by the People. However, appeal was not an adequate remedy in the instant case since unwarranted complications would be introduced if the trial were to take place before a ruling on the appeal. The issue could properly be resolved by writ of mandate.id: 14739
People were entitled to appeal where the order dismissing the action was based upon the Miranda ruling alone.Following a hearing, the court granted defendant's pre-trial suppression motion based upon <i>Miranda</i> violations. The court then dismissed the matter pursuant to Penal Code section 1385 and the People appealed. Defendant argued that pre-trial evidentiary issues are nonappealable. However, when physical evidence seized as a result of an unlawfully obtained admission or confession has been suppressed at a section 1538.5 hearing, pre-trial appellate review of the admissibility of the physical evidence necessarily requires a determination of the correctness of the trial court's Miranda ruling. The People were clearly entitled to appeal the order dismissing the action under section 1238 subdivision (a)(8).id: 14740
Pre-trial order of dismissal was reviewable by the People.A ruling on an evidentiary issue which results in the People's inability to proceed to trial and leads the trial court to dismiss pursuant to Penal Code section 1385 is reviewable on an appeal by the People.id: 14741
The People had the right to appeal the dismissal of the juvenile's case after the granting of a suppression motion.Minor's statements to police were suppressed for defective Miranda advisements and because the court found the officers took advantage of the minor in order to obtain his confession. After the prosecution stated it would be unable to proceed the court dismissed the charges. Since the juvenile court ordered that the case be dismissed and the minor had not yet been placed in jeopardy, the prosecution has the right to appeal the dismissal order and ask the court to examine the sufficiency of the reasons for the dismissal.id: 14743
The People had the right to appeal the court's order returning the seventeen year-old to the CYA after the board found him an inappropriate candidate for CYA treatment.The People appealed an order returning the minor to the California Youth Authority after its Youthful Offenders Parole Board found him an inappropriate candidate for CYA treatment and returned him for resentencing under Welfare and Institutions Code section 1737.1. The refusal to resentence the minor substantially affected the People's rights and the order was proper.id: 14744
People do not have a specific time limit for review of an adverse fitness determination.The People may seek review of an adverse fitness determination whether couched in terms of abuse of discretion or excess of jurisdiction. Moreover, the People are not given a specific time limit for review. Because the People petitioned here prior to the commencement of the Welfare and Institutions Code section 6092 hearing and the attachment of jeopardy, the petition was timely and proper.id: 11694
Dismissal order made upon the court's own motion was appealable.The trial court granted defendant's motion to suppress the results of a blood sample taken from him. Five days later the court dismissed the matter pursuant to Penal Code section 1385.5. Defendant argued the court's order of dismissal was made in response to the request of the prosecutor and, thus, was not appealable. However, the record clearly revealed that it was the intention of the court to preserve the People's right to appeal, and that the dismissal order was made on the court's own motion. Therefore, the order was appealable.id: 9806
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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