6 California Criminal Law (4th), Criminal Appeal

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1 6 California Criminal Law (4th), Criminal Appeal I. IN GENERAL A. [ 1] Appellate Jurisdiction. B. [ 2] Appellate Rules. C. Extension of Time. 1. [ 3] In General. 2. [ 4] Factors Considered. D. Right of Appeal. 1. In General. (a) [ 5] Appealability Is Constitutional or Statutory. (b) [ 6] Right of Parties. (c) [ 7] Waiver. (d) [ 8] Distinctions. 2. After Guilty or Nolo Contendere Plea or Probation Revocation. (a) Conditions. (1) [ 9] In General. (2) Statutory Requirements: Statement and Certificate. (aa) [ 10] In General. (bb) [ 11] Exceptions. (3) Necessity of Compliance. (aa) [ 12] Criticisms of Relaxed Compliance. (bb) [ 13] Strict Compliance. (4) Scope of Requirements. (aa) [ 14] In General. (bb) [ 15] Sentencing Error. (b) Appealable Issues. (1) [ 16] Statutory Grounds Only. (2) [ 17] Reviewable Claims. (3) Nonreviewable Claims. (aa) [ 18] Contentions Relating to Evidentiary Matters. (bb) [ 19] Contentions Relating to Other Matters. (c) Exceptions to Statutory Conditions. (1) [ 20] General Rule. (2) Exceptions Where Appeal Does Not Challenge Validity of Plea. (aa) [ 21] In General. (bb) [ 22] Sentence or Sentencing Procedure. (cc) [ 23] Denial of Motion To Set Aside Judgment. (3) [ 24] Exceptions Even Though Appeal Challenges Validity of Plea. (d) Probable Cause. (1) [ 25] Function of Trial Judge. (2) [ 26] Review of Trial Judge's Refusal. (e) Procedure. (1) [ 27] In General.

2 (2) [ 28] Filing Notice of Appeal and Request for Certificate. (3) [ 29] Right to Counsel. E. Effect of Taking Appeal. 1. Jurisdiction Lost by Trial Court. (a) [ 30] In General. (b) [ 31] Attempt or Agreement To Dismiss Appeal. 2. Jurisdiction Retained by Trial Court. (a) [ 32] In General. (b) [ 33] Habeas Corpus. F. Counsel on Appeal. 1. In General. (a) [ 34] Former Law and Practice. (b) [ 35] Constitutional Right to Counsel (Douglas Rule). (c) [ 36] Nature of Rule. (d) [ 37] Scope of Rule. (e) [ 38] No Right to Self-Representation. 2. Public Defender or Private Counsel. (a) [ 39] Appointment. (b) [ 40] Selection and Compensation. 3. [ 41] Duties of Trial Attorney. 4. [ 42] Requirement of Brief (Anders Rule). 5. Competency of Appellate Counsel. (a) [ 43] In General. (b) [ 44] Duty To Raise Arguable Issue. 6. Appellate Review of Record (Wende Rule). (a) Where Counsel Finds No Arguable Issue. (1) [ 45] In General. (2) [ 46] Criticism of Rule. (3) [ 47] Proceedings Where Rule Is Not Applicable. (4) [ 48] Court Must Address Defendant's Supplemental Arguments. (b) [ 49] Where Counsel Raises Specific Issue. 7. [ 50] Assistance of Experts. 8. [ 51] Misdemeanor Appeal. G. [ 52] Incompetency Is Not Ground for Stay of Appeal. H. [ 53] Service of Papers in Death Penalty Cases. II. APPEALABILITY OF JUDGMENTS AND ORDERS A. Appeal by Defendant. 1. Final Judgment of Conviction. (a) [ 54] In General. (b) [ 55] Qualifications. (c) What Constitutes Final Judgment. (1) [ 56] In General. (2) [ 57] Sentence and Judgment. (d) [ 58] Where Execution of Sentence Is Suspended. (e) [ 59] Where Sentence Is Suspended.

3 2. [ 60] Order Denying Motion for New Trial. 3. Order After Judgment Affecting Substantial Rights. (a) [ 61] In General. (b) Order After Probation Is Granted. (1) [ 62] Order Revoking Probation. (2) [ 63] Other Post-Probation Orders. (c) [ 64] Orders in Sex Offender Proceedings. 4. Order Denying Motion To Vacate. (a) [ 65] General Rule: Not Appealable. (b) [ 66] Exception: Inadequate Record in Appeal From Judgment. (c) [ 67] Exception: Judgment Void for Jurisdictional Defect. (d) [ 68] Exception: Statutory Motion To Vacate. (e) [ 69] Exception: Appeal Considered in Court's Discretion. 5. [ 70] Appeal After Adjudication of Contempt. 5A. [ 70A] (New) Order Denying Petition To Recall Sentence. 6. Miscellaneous Nonappealable Orders. (a) [ 71] Orders Before Judgment. (b) [ 72] Orders After Judgment. B. Appeal by Prosecution. 1. Appealable Orders. (a) [ 73] In General. (b) [ 74] Order Recusing District or City Attorney. (c) Order Setting Aside Accusatory Pleading. (1) [ 75] Right To Appeal. (2) [ 76] Election Between Appeal and New Pleading. (d) [ 77] Judgment for Defendant on Demurrer. (e) [ 78] Order Granting New Trial. (f) [ 79] Order Arresting Judgment. (g) Order After Judgment Affecting Substantial Rights. (1) [ 80] Order Reducing Felony-Misdemeanor to Misdemeanor. (2) [ 81] Miscellaneous Orders. (h) [ 82] Order Reducing Verdict or Finding. (i) Orders Dismissing Proceeding. (1) [ 83] Dismissal of Felony. (2) [ 84] Dismissal of Misdemeanor or Infraction. (j) [ 85] Order Denying Reinstatement of Dismissed Complaint. (k) [ 86] Order Imposing Unlawful Sentence. 2. Nonappealable Orders. (a) [ 87] Order Granting Probation. (b) [ 88] Miscellaneous Orders. C. [ 89] Appeal Involving Bail Forfeiture. III. NOTICE OF APPEAL A. In General. 1. [ 90] Written or Printed Notice Must Be Filed. 2. [ 91] Notification by Clerk. B. Form and Liberal Construction.

4 1. [ 92] In General. 2. [ 93] Specification of Wrong Order. 3. [ 94] Specification of Sentence or Verdict. 4. [ 95] No Specification of Any Order. C. Time of Filing. 1. [ 96] Normal Time. 2. [ 97] Special Proceedings. 3. Time Is Jurisdictional. (a) [ 98] General Rule. (b) [ 99] Exception: Constructive Filing. (c) [ 100] Distinction: Where Delay Is Not Excusable. 4. Relief From Late Filing. (a) [ 101] Communicated Desire To Appeal. (b) [ 102] Changes in Rules. (c) [ 103] Relief Reaffirmed: Diligent Defendant. 5. [ 104] Premature Filing Is Excusable. 6. [ 105] Conditional Notice Attached to Motion. IV. STAY AND BAIL PENDING APPEAL A. Stay of Execution. 1. Death Penalty Cases. (a) [ 106] Pending Review by California Supreme Court. (b) [ 107] Pending Review by United States Supreme Court. 2. Other Cases. (a) [ 108] Power and Procedure. (b) [ 109] Discretion To Grant or Deny. (c) [ 110] Stay of Probation Order. B. Bail Pending Appeal. 1. [ 111] As Matter of Right. 2. In Discretion of Lower Court. (a) [ 112] Power and Discretion. (b) [ 113] Judicial Criteria for Release. (c) [ 114] Statutory Criteria for Release. (d) [ 115] Statement of Reasons. (e) [ 116] Procedure. 3. In Discretion of Appellate Court. (a) [ 117] Power and Condition. (b) [ 118] Procedure. (c) [ 119] Matters To Be Considered. (d) [ 120] Illustrations: Bail Granted. (e) [ 121] Illustrations: Bail Denied. V. RECORD ON APPEAL A. Defendant's Right to Free Transcript. 1. [ 122] Felony. 2. Misdemeanor. (a) [ 123] Constitutional Right. (b) [ 124] Statutory Right.

5 3. [ 125] Quasi-Criminal Proceedings. 4. [ 126] Test of Indigency. 5. [ 127] Vexatious Litigant. B. Form and Content of Record. 1. [ 128] In General. 2. [ 129] Normal Record. 3. [ 130] Additional Record. 4. [ 131] Confidential Material. 5. [ 132] Complete Record in Capital Case. 6. Limited Record in Other Cases. (a) [ 133] In General. (b) [ 134] Appeal After Probation Is Revoked. 7. [ 135] Short Record. 8. [ 136] Augmenting or Correcting Record by Trial Court. 9. [ 137] Juror Identifying Information. C. Preparation and Certification. 1. [ 138] In General. 2. [ 139] Preparation of Record. 3. [ 140] Time Requirements in Felony Cases. 4. [ 141] Special Requirements in Death Penalty Cases. D. Where Transcript Is Wholly or Partially Unavailable. 1. Settled Statement. (a) [ 142] In General. (b) [ 143] Sufficiency. 2. New Trial. (a) [ 144] No Absolute Right. (b) [ 145] Right Where Sufficient Record Is Not Available. E. [ 146] Correction of Defective Record. F. Record in Appellate Court. 1. Transmission. (a) [ 147] In General. (b) [ 148] Exhibits. 2. Augmentation by Order of Appellate Court. (a) [ 149] Procedure. (b) [ 150] Showing Required. 3. [ 151] Correction by Order of Appellate Court. 4. [ 152] Conflict Between Clerk's and Reporter's Transcripts. VI. BRIEFS AND ARGUMENT A. Briefs. 1. [ 153] Requirement. 2. [ 154] Content, Form, and Style. 3. [ 155] Length. 4. [ 156] Service and Filing. 5. [ 157] Action on Defective Briefs. B. Oral Argument. 1. [ 158] In General.

6 2. [ 159] Waiver. VII. NATURE AND SCOPE OF REVIEW A. In General. 1. [ 160] Function of Appellate Court. 2. [ 161] Standard of Review in Decision Affecting Constitutional Rights. 3. [ 162] Correction of Presentence Credit Calculations. B. [ 163] New Matter on Appeal. C. Matters Not Reviewable. 1. [ 164] Matters Outside Record. 2. [ 165] Reasons for Trial Court's Decision. 3. [ 166] Issues Not Raised in Prior Appeal. 4. [ 167] Law of the Case. 5. [ 168] Other Matters. D. Sufficiency of Evidence. 1. Constitutional Standard. (a) [ 169] In General. (b) [ 170] Multiple Theories. 2. Presumption in Favor of Judgment. (a) [ 171] In General. (b) [ 172] Testimonial and Circumstantial Evidence. 3. [ 173] Impeachment and Inherent Improbability. 4. Evidence Unsubstantial. (a) [ 174] Test of Unsubstantial Evidence. (b) [ 175] Illustrations. (c) [ 176] Denial of Due Process. 5. [ 177] Appeal by Prosecution From New Trial Order. E. [ 178] Rulings Against Prosecution in Defendant's Appeal. VIII. DETERMINATION OF APPEAL A. [ 179] In General. B. [ 180] Voluntary Abandonment or Dismissal. C. Involuntary Dismissal. 1. [ 181] Death of Appellant. 2. Fugitive Disentitlement Doctrine. (a) [ 182] Escape of Defendant. (b) [ 183] Consideration of Defendant's Request To Dismiss Case. 3. Frivolous Appeal. (a) [ 184] Policy Against Dismissal. (b) [ 185] Postconviction Orders. (c) [ 186] Dismissal After Examination of Record. 4. [ 187] Moot Case. D. [ 188] Affirmance. E. Reversal. 1. [ 189] General Reversal. 2. Reversal With Directions. (a) [ 190] In General. (b) [ 191] Error in Sentence.

7 3. [ 192] Partial Reversal. 4. [ 193] Reversal Without Order for New Trial. F. Modification. 1. [ 194] Change in Judgment. 2. [ 195] Reduction in Punishment. G. [ 196] Finality of Decision. IX. PROCEEDINGS SUBSEQUENT TO APPELLATE DECISION A. Rehearing and Review. 1. [ 197] Rehearing in Court Rendering Decision. 2. [ 198] Review in Supreme Court. 3. [ 199] Hearing After Appeal in Misdemeanor Case. B. Recall of Remittitur. 1. [ 200] In General. 2. [ 201] Mistake or Inadvertence. 3. [ 202] No Remedy for Judicial Error. 4. [ 203] Denial of Constitutional Right. C. Further Review in United States Supreme Court. 1. [ 204] Review of Federal Questions. 2. [ 205] Illustrations. X. APPEALS IN MISDEMEANOR AND INFRACTION CASES A. [ 206] In General. B. [ 207] Judicial Council Forms. C. [ 208] Notice of Appeal. D. [ 209] Normal Record on Appeal. E. [ 210] Transcripts. F. Settled Statement. 1. [ 211] In General. 2. [ 212] Procedure. 3. [ 213] Trial Judge's Duty. F-1. [ 213A] (New) Failure To Procure Record. G. [ 214] Relief From Default. H. [ 215] Abandonment and Dismissal. I. [ 216] Reversal for Prosecutorial or Judicial Delay. J. Hearing and Decision in Appellate Division. 1. [ 217] In General. 2. [ 218] Decision. K. [ 219] Remittitur.

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