Attorney Explains California Criminal Appeals Process

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Barhoma, Law P.C., has a high success rate on appeal and in post-conviction work. There is a methodical reason why we have a high success rate: we review the trial record conclusively. Below, Matthew Barhoma outlines the steps to take in any California appeal matter (felony or misdemeanor). To learn more about how we can fight and potentially win your appeal, call us for a free consultation at (213) 855-2956.

If you are considering appealing your case, and seeking for immediate relief while the appeal is ongoing, contact an attorney at Barhoma Law, P.C., to determine your successes and to get the process started today.

How to Win Your California Criminal Appeal: A Step by Step Guide

One of the first things we do and recommend doing is to extensively go through the trial record and lower court findings. This is a retrace of every step the trial court went through to conclude guilt. One of the biggest items is the preliminary hearing record and every hearing thereafter. We seek to look into every word that was stated at the lower court. In reviewing these records, we are seeking: (A) mistakes made by your trial attorney, (B) statements made by prosecutor that are improper or possibly taint the jury, (C) errors or abuse of discretion by the judge, and/or (D) instance where there is a tainted jury member or jury tampering.

After a conviction, life is hard. The State of California wants to immediately take you or your loved one away, take possession over you or your loved one’s body and strip away its freedom. You and your loved ones probably just underwent a very difficult time since the arrest and trial, and now, there are sensitive timelines to continue the fight for your freedom. At Barhoma Law, P.C., we understand. And we have dealt with this time and time again. Below is a step by step guideline of the appeal process provided by Matthew Barhoma, founder of Barhoma Law, P.C.:

1. The Notice of Appeal

Your case can live or die immediately after a conviction. For felonies, you have 60 days from the date of conviction to file what is called a Notice of Appeal. This is how you commence the appeal process in a felony conviction. Similarly, in a misdemeanor conviction, the Notice of Appeal must be filed within 30 days. If you fail to file the Notice of Appeal in time, your appeal will be automatically lost. As such, after conviction, it is highly recommended that you retain an appellate attorney quickly to handle your appeal.

You will want to work closely with your California appellate lawyer in finalizing this step. Failure to timely submit the notice of appeal will result in an automatic denial of your appeal. In other words, if you do not file the notice of appeal, your appeal will not be considered.

Misdemeanor Appeal Notice

You have the right to appeal an adverse judgment in a misdemeanor setting. This right extends to all misdemeanor cases and extends to all judgments and orders affecting your substantial rights.

Penal Code § 1466(b) gives you the right to this appeal. Specifically, you can appeal a sentence, an order, a conviction in a case, or any part of the case. It is recommended that you immediately seek the counsel of an experienced appellate attorney to handle this process for you. As indicated above, there is a very strict timeline to commence your appeal. If you miss that deadline, your remedies after a conviction are substantially limited. Barhoma Law, P.C.‘s, lawyers are committed to maximizing success on appeal.

Felony Appeal Notice

Penal Code § 1237 specifically indicates “An appeal may be taken by” you. To appeal a judgment after a jury or court trial, you must file a notice of appeal within 60 days. If you are seeking to appeal after a guilty plea, consult with an attorney immediately to determine the best strategy to take. Appeals from guilty pleas are common. Barhoma Law, P.C., has experience in both sub-types of felony appeals—following a trial or a plea.

Given the sensitive and strict timeline under the Penal Code, a lawyer’s immediate attention is required. To learn more about how we can fight and potentially win your appeal, call us for a free consultation at (213) 855-2956.

Bail Pending Appeal

Barhoma Law, P.C., can file for a “Bail Pending Appeal” motion that seeks to lower your bail. Further, we will argue for your immediate release while the appeal is ongoing. California Penal Code § 1272.1 gives you the right to seek this form of relief. When applicable, Barhoma Law, P.C., almost always pursues this option. If there is a high likelihood of success, we recommend to pursue this option for multiple reasons: first, it allows you immediate freedom and justice; second, it gives your appeal momentum. For those reasons, consult with an appellate attorney to file your Bail Pending Appeal immediately. Barhoma Law, P.C. has experienced great success in these types of motions.

Penal Code § 1272.1 instructs the court to take multiple factors into consideration when making the decision to grant your appeal. First, the court looks to see your record of good attendance at prior court appearances and hearings. The better the record is, the higher the likelihood you will be granted this relief. Second, the court looks at your ties to the community as well as your family ties in the area. The stronger your ties to the community are, such as church/religious attendance, owning real estate property, and having material possessions in the area, the stronger the chance the court will grant you this relief.

2. Preparing and Organizing the Record

The next step after you and your lawyer submit a Notice of Appeal is preparing the record. The Superior Court is required to maintain two major files:

  1. Report’s transcript: Word for word what is stated in court; and
  2. Clerk’s transcripts: Includes minute orders and other items the judge ordered.

Both items are vital to your appeal. Keep in mind, these two sets of records include everything said during you or your loved one’s initial case. They also include various documents and all the exhibits and evidence used to lead to the unfortunate conviction. A careful eye is required in reviewing these items.

Barhoma Law, P.C., extensively looks through these records to craft the strongest case for your appeal. Commonly, through our experience and eye for details, we find various and notable errors right within those documents.

3. Filing Your Opening Brief

This is the appeal itself. Once a full and detailed review of the record is made, an experienced attorney will draft and detail every issue for the appeals court. At Barhoma Law, P.C., we like to order our issues on appeal with the strongest first. So that at the outset, the Court of Appeals can immediately see and recognize the errors made by the lower court or the prosecutor in the lower court’s proceeding.

Keep in mind, when this is filed, you or your loved one is considered the “moving party” or the “petitioner” because the appeal is being filed on your behalf. The prosecutor or the District Attorney will have an opportunity to respond to this opening brief. However, as the moving party, you have the first and last word, as discussed in section 5 below.

4. Receiving the Prosecutor’s Brief

As mentioned in Section 3 above, when you or your loved one work closely with your Los Angeles appeals attorney to file your opening brief, you are considered the moving party, or the petitioner. In response to your opening brief, the prosecutor may file a Respondent’s Brief.

This Respondent Brief will challenge all the errors you and your lawyer point out in the Opening Brief. If you hire an experienced appellate lawyer, the challenges brought up in the Respondent’s Brief will not be as strong as the errors mentioned in the Opening Brief.

5. Responding and Challenging to the Prosecutor’s Brief

If the Prosecutor files a Respondent Brief, you are allowed to file a response to the claims they are making. This is known as the “Reply Brief.” This step is optional. The court will limit the contents of the Reply Brief only to the scope of the Opening Brief and Respondent’s Brief. As such, you cannot introduce new material in this document.

At Barhoma Law, P.C., when possible, we take every opportunity to file a Reply Brief on your behalf. The Reply Brief is an additional opportunity for us to strengthen your case and fight for your rights. Almost always the Respondent’s Brief is lacking or incorrect. We take the opportunity in this step to highlight those errors and maximize your likelihood of success on appeal. Please note there is a timeline when this brief must be filed. Therefore, ensure to speak and work closely with your appellate attorney to get this part done in time. The Court of Appeals may not accept a late filing in this instance.

6. Representation In Court Before the California Court of Appeals

Appellate court is very different than trial court. At trial, you have the lawyers, the client, the jury, the judge, and the various witnesses in the case. Appeals court is a much more legalized setting. At appellate court, there are three to five judges, depending on the district, two lawyers, and there is no jury. Appellate court almost never hears witnesses.

The oral argument component is where your lawyer presents your best arguments. This is an opportunity to convince the judges of the reasons you conviction should be overturned. The courts do not always mandate or allow for this.

If it’s available, Barhoma Law, P.C. almost always seeks an in-person oral argument. This is one of the biggest opportunities to express to the court of appeals why they should grant your appeal. Moreover, the judges almost always have questions. Once we’re presenting oral argument, the judges will frequently ask questions. This is where you can get an idea for how they feel about the case, and persuade them of the errors committed, or the prosecutorial errors made in the lower court.

Just like the sequence with the opening brief, respondent’s brief, and the reply brief, there is a sequence to the oral argument. Almost always the appellant goes first. Meaning, your attorney starts the oral argument. Once they are finished, the prosecutor will have time to argue, and the judges will ask him/her questions. Then, you have the last word. Meaning your attorney will have the ability to make any closing remarks or rebuttal arguments in your favor.

At Barhoma Law, P.C., we try to not just reiterate the arguments stated in the opening brief. We know the judges had a chance to read and digest those arguments already. Rather, we try to use this valuable time for oral argument to bring passion and emotion to your argument. We fight for you like we would our family. We seek to fix an error, and we use every possible methodology to pursue that end.

7. Petition for Rehearing (if necessary)

Once the court of appeals hears your oral argument, they will take it into submission. From there, they will issue a ruling. If you do not like the outcome of that ruling, you can request a rehearing. There is a very short and strict timeline on this procedure. As such, we recommend you consult with your attorney immediately.

At Barhoma Law, P.C., we exercise this option where there was a deficiency in the process. Otherwise, we seek a petition for review with the Supreme Court.

8. Petition for Review: The Supreme Court Appeal

Once the court of appeals hears your oral argument, they will take it into submission. From there, they will issue a ruling. However, if you do not like that ruling, or you do not have grounds for a rehearing, or a rehearing is denied, you can appeal your case to the Supreme Court. Please keep in mind that both you and the prosecution have this option. There is a very short timeline to seek a petition for review.

At Barhoma Law, P.C., we recommend seeking a petition for rehearing, as sometimes it is necessary for the Petition of Review to the Supreme Court.

Overall, this is the eight-step guide to your appeal. As you can tell, appealing a criminal conviction is a very legalized and detailed process. It is absolutely recommended that you retain the services of a skilled and artful appellate court lawyer. Retaining an attorney who is experienced in appellate law will reduce the stress of dealing with the filing deadlines and the overall appeals process. You can learn more about the appeals process by calling Barhoma Law, P.C., at (213) 855-2956 and scheduling a free consultation.

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