Limits of Review on Appeal, generally
Category > Limits of Review on Appeal, generally
Defendant need not testify to preserve for appeal a challenge to the use of a statement for impeachment when the statement was obtained in violation of a constitutional right.When a defendant raises a pure issue of law concerning a fundamental constitutional right, the defendant need not testify to preserve error in the trial court's rulings on impeaching evidence.id: 12816
Where the denial of the suppression motion and entry of the plea occurred in the municipal court, the failure to renew the motion in superior court did not preclude appellate review.After the denial of his suppression motion, defendant pled guilty in the municipal court. Defendant's failure to renew the motion to suppress in superior court did not preclude him from raising the issue on appeal. The ruling on the motion, the entry of the plea, and the judgment of conviction came out of the same court. The issue was therefore appealable under Penal Code section 1538.5.id: 11833
An order granting deferred entry of judgment to a minor is nonappealable.An appeal does not lie from an order granting deferred entry of judgment under Welfare and Institutions Code section 790 et seq, because the order is not a judgment but rather an order after judgment.id: 18263
A defendant can waive the right to appeal a previous conviction as part of a plea bargain in a later case.When the guilty verdict was read at defendant's three strikes trial he reacted violently and became embroiled in an altercation with the bailiffs. The result was several additional charges including felony attempted escape. Under a plea bargain in the second case, the strike allegations were dismissed in exchange for his waiver of the right to appeal the earlier conviction. The record shows a knowing and voluntary waiver of his right to appeal. A defendant can waive the right to appeal a previous conviction as part of a plea bargain in a later case.id: 15697
No contest plea does not preclude appellate review of the denial of motion to disclose the sealed portion of an affidavit and to discover an informant's identity.Defendant's plea of no contest did not preclude appellate review of the denial of her motions to disclose the sealed portion of the search warrant affidavit and discover the identity of the confidential informant. From the date defendant simultaneously filed her written pleadings seeking access to Exhibit C and to quash and traverse the warrant, through each of the several hearings held to resolve her challenges to the warrant defendant, the court, and the prosecutor treated her request for disclosure of the contents of Exhibit C as an integral part of her motions to quash and traverse the warrant. At no time did the prosecutor object to this approach.id: 11066
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
Since hormone suppression treatment was listed as a consequence of the plea and defendant agreed to waive is right to appeal, he could not later claim the condition was cruel and unusual punishment.Defendant pled guilty to specified charges in exchange for a sentence of up to 30 years, acknowledged that he understood the consequences of the plea including "possible/mandatory hormone suppression treatment," and agreed to waive the right to appeal any sentence within the specified terms. On appeal, he argued the judgment imposing hormone suppression treatment constituted cruel and unusual punishment. However, waiver of this issue was part of the plea bargain and since the condition did not exceed Penal Code section 645, the sentence was not unauthorized.id: 16988
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
Failure to bring a suppression motion prior to the guilty plea precluded appellate review of the issue.Defendant's guilty plea and his failure to bring a motion to suppress the evidence uncovered in the execution of the search warrant, precluded review of the trial court's denial of the motion for discovery about the informant who provided officers with information that supported the search warrant.id: 16717
Defendant's failure to seek a settled statement in lieu of a complete transcript constituted a waiver of the issue.Defendant argued he was denied his rights to a formal probation revocation hearing and his right to arraignment upon sentencing. He relied on an incomplete reporter's transcript to imply he did not waive these rights, in contradiction of a detailed clerk's transcript which recorded his waivers. Defendant failed to carry his burden of providing a sufficient record to support his arguments on appeal and has waived his right to seek a settled statement in lieu of a complete transcript.id: 14746
Failure to raise an issue in the first appeal may constitute a waiver of the right to raise the issue in a subsequent appeal.When a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have waived the right to raise the issue in a subsequent appeal, absent a showing of good cause or justification for the delay.id: 14747
Order denying motion to modify the sentence after the court had lost jurisdiction to do so was not appealable.On April 12, 1991, the court denied defendant's motion to modify his sentence under Penal Code section 1170, subdivision (d), after finding the court no longer had jurisdiction following the expiration of the 120-day period as provided in that section. Defendant appealed the order. However, the April 12 order constitutes an order made after judgment and is appealable only if it affects defendant's substantial rights. According to the terms of section 1170, subdivision (d), a defendant has no standing to bring the motion to recall his sentence. Therefore, denial of the instant motion could not have affected defendant's substantial rights. The order denying the motion to modify the sentence was not an appealable order.id: 13383
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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