The Appeals Process

The purpose of an appeal is to review the trial court proceedings to see if the law was followed.  An appeal is not a new trial.

An appeal deals only with issues shown in the transcripts, also known as “the record on appeal.”  The transcripts include:

1.  The papers in the trial court files and
2.  A court reporter’s word-for-word record of what happened in the court room.

The Court of Appeal does not hear witnesses or take new evidence and has no power to decide questions of fact, such as to whether the defendant is guilty or innocent, or whether a certain witness was lying.  Rather, the Court of Appeal will decide the case based on written briefs containing the arguments raised by your attorney and the Attorney General and the “record on appeal.”

The Court of Appeal deals with legal questions.  It decides whether the trial court proceedings followed the law.  For example, it might decide whether certain evidence was correctly admitted, or whether the jury was properly instructed, or whether the trial judge gave adequate reasons for choosing a particular sentence, or other similar issues.

If the Court of Appeal finds that the proceedings were conducted correctly, the judgment is “affirmed” which means the defendant’s conviction and sentence will not change.

If the Court of Appeal finds some important mistake was made in the trial court, your case will probably be “reversed” (in part or in full) and sent back to the trial court to correct the mistake. Some mistakes can be corrected by the Court of Appeal itself, without sending the case back.

Even if the Court of Appeal finds that a legal error was made during the trial, the judgment will generally still be affirmed unless the court finds “prejudice.”  Prejudice means that the error made a difference in the trial or affected the outcome of the trial.  If there is “error” and “prejudice” the case will be “reversed” (in part or in full) and sent back to the trial court for a new trial, a new sentencing hearing, or some other proceeding to correct the error.  Some mistakes can be corrected by the Court of Appeal itself, without sending the case back.

Most appeals take at least a year from the time the notice of appeal is filed, to the time the decision of the Court of Appeal becomes final.

After an appellate attorney is appointed to your case, the attorney will review the record, make sure that all the necessary documents are contained in the record, and begin researching potential issues for the opening brief.  You will receive copies of all the briefs, the opinion, any petitions filed, and all other important papers.
Download a printable copy of “Understanding Your Appeal”.

The usual steps in an appeal are:

(1) Preparation of the Transcripts

After the notice of appeal was filed, the trial court clerk and reporter began preparing the transcripts.  Preparation of the transcripts can take anywhere from less than a month to over six months, depending on factors such as the length of the trial or whether it is necessary to request additional records.  The appellate attorney gets the only copy of the transcripts, and they are not provided to the defendant until the end of the attorney’s representation.

(2) Appellant’s Opening Brief

The first section of the brief is the “Statement of the Case,” which summarizes the procedural history of the case.  Next is the “Statement of Facts,” which summarizes the evidence in the case – – first the prosecution, next the defense, then the prosecution rebuttal if any.  On appeal, the evidence is evaluated in a light most favorable to the judgment.

Next is the “argument.”  This is where the attorney argues that the trial court proceedings did not follow the law and thus the defendant should be given a new trial or sentencing hearing, or other appropriate relief.

The opening brief is due 30 days after the transcripts are filed.  In most cases, however, several 30-day extensions of time are needed.

(3) Respondent’s Brief

About two to six months after appellant’s opening brief is filed, the Attorney General will answer by filing a “Respondent’s Brief.”  Some common arguments made in this brief are: appellant’s issues are waived because they were not raised at trial; there was no error; if there was error, the error was harmless.  This brief is just the prosecution’s argument; it is not the Court of Appeal’s decision.

(4) Appellant’s Reply Brief

In this brief, the attorney answers the arguments made in the “Respondent’s Brief.”  It is due 20 days after the Attorney General’s brief is filed.  A reply is optional and is filed when your attorney thinks it will help.

(5) Oral Argument

A month or two after all the briefs are filed, the Court will ask the parties if they request oral argument.  At oral argument the attorneys for both sides go to the court and argue in person.  Oral argument is not held in most cases – – only if there is something that needs to be said that was not already said in the briefs.

(6) The Opinion

The Court of Appeal decides the issues in a written “opinion” which explains its decisions. Three judges read the briefs, review the transcripts, hear oral argument (if requested), and discuss the issues. Then they vote.  At least two judges must vote the same way to reach a decision.  One of the judges writes the “opinion” for the majority.  Occasionally, another judge may write a separate opinion if he or she disagrees with the majority opinion.  The opinion is filed after oral argument is held or waived. This may take a few days to as much as three months.

(7) Petition for Rehearing

Within 15 days after the opinion is filed, either party may file a petition for rehearing which asks the court to reconsider its decision due to legal or factual errors in the opinion.  Few are filed and very few are granted.

(8) Petition for Review in the California Supreme Court

Within 40 days after the opinion is filed, either party may file a petition for review in the California Supreme Court. The Supreme Court primarily takes cases which present important issues of law or a conflict in decisions of different Courts of Appeal. Petitions for review are not filed in every case. Very few are granted.