Criminal appeals and civil writs

• Pages: 1101-1155
• Author: Paul Burglin,Barry Simons,Ed Kuwatch

CRIMINAL APPEALS,

CIVIL WRITS

12-1

CHAPTER 12

CRIMINAL APPEALS AND CIVIL WRITS

§12:10 CRIMINAL APPEALS FROM MISDEMEANOR CONVICTIONS

§12:11 Jurisdiction of Superior Court Appellate Department

§12:11.1 Trial Judge Disqualified From Sitting on Appellate Panel

§12:11.2 Judge Who Heard Any Contested Pretrial Proceeding Is

Also Disqualified From Sitting on Appellate Panel

§12:12 Rules of Court

§12:13 Duties of Trial Counsel for Indigent Defendants

§12:14 Notice of Appeal

§12:14.1 Form 12-1: Notice of Appeal

§12:14.2 Certificate of Probable Cause After Guilty Plea

§12:14.3 Waiving Right to Appeal Generally Bars Appeal

§12:14.4 Failure To Object Generally Waives Right To Appeal Issue

§12:14.5 No Right to Appeal Pen.C. §1538.5 Denial When DEJ Granted

§12:14.6 Late Filing

§12:15 Notice of Record Preparation Election

§12:16 Settling and Certifying the Record

§12:16.1 Forms to Settle and Certify Record

§12:16.1.1 Form 12-2: Proposed Statement on Appeal

§12:17 Stay of Trial Pending Pretrial Appeal

§12:18 Briefs and Decision on Appeal

§12:19 Proceedings Following Decision

§12:19.1 Finality of Judgment

§12:19.2 Petition for Rehearing

§12:19.3 Transfer of Case to Court of Appeal

§12:19.4 Petition to Court of Appeal for Transfer

§12:19.5 Publication and Depublication

§12:19.6 Peremptory Challenge After Reversal

§12:19.7 Speedy Trial Right After Remittitur Issued

§12:19.8 Double Jeopardy and the Imposition of Greater Sentences on Reconviction

§12:19.9 Wrongfully Convicted Defendants Entitled To Refund of Fines,

Assessments, and Restitution Payments

§12:19.10 Sanctions A Possibility For Frivolous Appeals Filed By Private Counsel

§12:19.11 Ineffective Assistance of Appellate Counsel

§12:20 Only One Appellate Judge for Traffic Infraction Appeal

§12:21 Writs in Criminal Cases

§12:22 Code of Civil Procedure §170.6 Applies to Criminal Habeas Corpus Petitions

§12:23 Habeas Corpus Now Applies to Repudiated Scientific Opinions

§12:24 Right to Victim Impact Statement on Appeal

§12:25 Victims do not Have Independent Right to Appeal a Restitution Order

CRIMINAL APPEALS,

CIVIL WRITS

California Drunk Driving Law 12-2

§12:30 WRITS IN DMV ADMINISTRATIVE CASES

§12:31 Writ of Mandamus Procedure

§12:31.1 Traditional Mandate vs. Administrative Mandate

§12:31.2 Standard of Review

Form 12-4: Sample Points and Authorities Regarding Independent Judgment

§12:31.3 Judicial Deference

§12:31.4 No Power to Remand for New or Further APS Hearing

§12:32 May First (or Simultaneously) Request Departmental Review

§12:32.1 Form 12-5: Sample Departmental Review Request

§12:33 Time Limit for Filing Petition in Superior Court

§12:33.1 Form 12-6: Sample Transcript Request

§12:34 DMV’s Duty to Deliver Complete Record to Petitioner

§12:35 Remedy for Lost Record Is Set Aside of Suspension

§12:36 DMV Must Pay Expenses for Repeat Hearing Due to Lost Record

§12:37 Record on Review Limited to Record of Hearing

§12:37.1 Form 12-7: Points and Authorities Regarding Making Your Record for Appeal

§12:37.2 Form 12-8: Points and Authorities Regarding Evidence Code §604 for Writ

§12:38 Petitioner’s Duty to Present Adequate Record

§12:39 Venue

§12:40 Attorney’s Fees and Costs

§12:40.1 Form 12-9: Sample Request for Attorney’s Fees

§12:41 Alternative Writ vs. Petition and Motion

§12:42 Filing and Service

§12:43 Costs for Filing Petition

§12:43.1 Form 12-10: Sample Petition for Writ of Review

§12:44 Stay of Suspension/Revocation Pending Review

§12:45 Costs for Filing Ex Parte

§12:45.1 Form 12-11: Sample Declaration of Notice of Ex Parte

§12:45.2 Form 12-12: Sample Points and Authorities for an Ex Parte Application for Stay

§12:45.3 Forms 12-13: Sample Orders

§12:46 Legal Arguments and Grounds Not Included in Petition Form

§12:46.1 Denial of Due Process

§12:46.2 Denial of Equal Protection

§12:46.3 Writ Review on Matters Prior to Final Decision

§12:47 Judgment on the Writ

§12:47.1 Form 12-14: Judgment Granting Writ of Mandate/Review

§12:48 Checkpoints for Filing Writ

§12:48.1 Pre-Printed Judicial Council DMV Writ Forms

§12:49 Appeal of Superior Court Decision to Court of Appeal

§12:49.1 Standard of Review in Court of Appeal

§12:49.2 “Stay” Pending Decision from Court of Appeal

§12:49.3 Order Remanding Matter Back to DMV for Further Hearing Not Appealable

§12:49.4 Form 12-15: Sample Supersedeas

§12:50 RULE 8.268. REH EARING

§12:60 RULE 8.500. PETITION FOR REVIEW

§12:70 RULE 8.1105 CITATION OF APPELLATE OPINIONS PENDING REVIEW

§12:80 RULE 8.1120. REQUESTING PUBLICATION OF UNPUBLISHED OPINIONS

§12:90 RULE 8.1125. REQUESTING DEPUBLICATION OF PUBLISHED OPINIONS

CRIMINAL APPEALS,

CIVIL WRITS

12-3 Criminal Appeals and Civil Writs §12:11

§12:10 CRIMINAL APPEALS FROM MISDEMEANOR CONVICTIONS

§12:11 Jurisdiction of Superior Court Appellate Department

CCP §77 gives the Superior Court Appellate Division jurisdiction over appeals from misdemeanor convictions

in Superior Court.

Prior to the consolidation of municipal and superior courts, misdemeanors were tried in the Municipal courts.

Hence, an appeal to the Superior Court Appellate Department meant that the panel of judges deciding the case were

at least somewhat removed from their brethren on the Municipal Bench. Today, to the detriment of the appellant, the

panel of judges on the Superior Court Appellate Departments are reviewing rulings made by their colleagues on the

same Superior Court bench. This may be why Rule of Court 64(b) now permits the ling of a petition for review to the

Court of Appeal, even where the Superior Court Appellate Department has denied a request for certication and transfer.

§12:11.1 Trial Judge Disqualified From Sitting on Appellate Panel

Where the subject of the appeal concerns a proceeding heard by a particular trial judge, that judge is disqual-

ied from sitting on the appellate panel. CCP §§170.1(b) and 170.5(f).

§12:11.2 Judge Who Heard Any Contested Pretrial Proceeding

Is Also Disqualified From Sitting on Appellate Panel

Where a judge has presided over any contested pretrial proceeding in the case, even with respect to a matter

which is not the subject of the appeal, he is automatically disqualied from serving on the Appellate panel. Housing

Authority of the County of Monterey v. Jones (2005) 130 Cal.App.4th 1029. Though the disqualication seems

required by the mandate of CCP §§170.1(b) and 170.5(f), this Court found the disqualication to be mandated by

CCP §170.1(a)(6)(C), which addresses “the need to avoid even the appearance of impropriety,” and it applies even

where the judge makes an “unqualied expression of her ability to be fair and impartial in the case.” Id.

§12:12 Rules of Court

The California Rules of Court may be accessed at www.courts.ca.gov/rules.htm Rules 8.1 thru 8.1125 are the

Appellate Rules. It is critical to review all Rules of Court that apply to appeals as soon as you make the decision

to le an appeal. There are special time limits and form requirements.

§12:13 Duties of Trial Counsel for Indigent Defendants

Where private trial counsel will not be representing the defendant on appeal, the custom is to le the Notice of

Appeal showing the defendant representing himself, in pro per, then request that counsel be appointed. Where trial

counsel is a public defender, it’s customary that the same attorney will be representing the defendant on appeal.

Cal. Rules of Court, Rule 185.5 sets forth trial counsel’s duties for indigent clients with regard to obtaining

appointed counsel on appeal. It reads:

(a) [Standards for appointment] On application of defendant-appellant, the appellate department shall

appoint counsel on appeal for any defendant-appellant convicted of a misdemeanor who is subject to

incarceration or a ne of more than $500 (including penalty and other assessments), or who is likely to

suer signicant adverse collateral consequences as a result of the conviction, if the defendant-appel-

lant was represented by appointed counsel in the trial court. On application, the appellate department

shall appoint counsel for any other such defendant-appellants who establish their indigency as in the

Courts of Appeal. A defendant is subject to incarceration or a ne if the incarceration or ne is in a

sentence, or is a condition of probation, or may be ordered if the defendant violates probation. The

appellate department may appoint counsel for any other indigent defendant-appellant.

(b) [Application; duty of trial counsel] If defense trial counsel believes that the client is indigent and

will le an appeal, counsel shall prepare and le in the trial court an application to the appellate