Appealing a Criminal Conviction in California

Appealing a Criminal Conviction in California

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  APPEALING A CRIMINALCONVICTION IN CALIFORNIA DOMENIC J. LOMBARDO Appealing a Criminal Conviction in California Requires You to Navigate a Complex, and Often Confusing, Legal System that Should Only Be Attempted with the Assistance of an Experienced California Criminal Appeals Attorney
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  2 The goalof the defendant in any criminal prosecution is to be exonerated of all charges, either through a dismissal of the charges or through a “not guilty” verdict at trial. Failing to achieve that goal, however, does not mean you have to give up the fight. In the United States, a defendant has an absolute right to appeal a guilty verdict. In addition, you may also be entitled to appeal the sentence you received. Appealing a criminal conviction in California requires you to navigate a complex, and often confusing, legal system that should only be attempted with the assistance of an experienced California criminal appeals attorney. As a defendant though, you should have a basic understanding of the criminal appeals process. WHAT AN APPEAL IS – AND IS NOT Unless you had had reason to go through the appellate process before you may have several misconceptions about what an appeal is and what can be accomplished through filing an appeal. First and foremost, an appeal is not a new trial. As a general rule, new evidence cannot be admitted on appeal and you are not allowed to make new arguments on appeal. The purpose of an appeal is correct errors made at the trial level. Errors may have been made by the judge, the prosecutor, or the jury. Your appeal asks a higher court to review the trial
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  3 court recordand determine if an error was, indeed made and, if so, if that error affected the outcome of your case. Not all errors are actionable on appeal. “Harmless” errors, or errors that did not have an impact on the outcome, are acceptable. To succeed on appeal you must convince the appellate court that an error was made that impacted the outcome. POST-CONVICTION RELIEF VS. APPEALS After a guilty verdict there are two routs you may be eligible to take to seek relief from either the verdict or your sentence. Post-conviction relief, or P.C.R. typically refers to motions filed after trial or after you accepted a guilty plea. P.C.R. is not the same as an appeal; however, you may be able to accomplishing many of the same objectives with P.C.R. as you can with an appeal. Common P.C.R. motions include:  Motion to overturn a conviction based on ineffective assistance of counsel.  Motion to withdraw a guilty plea  Motion for re-sentencing ISSUES ON APPEAL To succeed on appeal you must allege, and prove, that a reversible error occurred during your trial. Some common appeal issues include:
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  4  Challengesto pre-trial rulings – pre-trial motions are commonly filed by both sides prior to trial. A pre-trial ruling, therefore, could have affected the eventual outcome of your case.  Jury misconduct –including anything from improper communications between a jury member and a witness to outright bribery.  Improperly admitted/excluded evidence – if you believe evidence was wrongly admitted or excluded by the judge during the course of your trial it can be used to appeal the verdict.
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  5  Insufficientevidence to sustain the conviction – thought the jury is charged with reaching a verdict, if the verdict is “guilty” there must be sufficient evidence to reach that verdict.  Improper jury instructions – the judge reads a set of jury instructions to the jury members before they are sent off to deliberate. An improper instruction can be cause for appeal.  Ineffective assistance of counsel –alleges that your attorney did not perform his or her job properly, resulting in an inadequate defense at trial. FILING AN APPEAL IN CALIFORNIA The first thing you must know about filing an appeal in California is that the appeal process is time sensitive. There are numerous deadlines involved in filing an appeal. Missing a deadline could cause you to lose your right to appellate review.  Notice of Appeal.To begin the appeals process you must file a Notice of Appeal with the Clerk of the trial court. For a misdemeanor conviction you have 30 days to file your Notice of Appeal whereas you have 60 days for a felony conviction. Except in rare circumstances, late notices will not be accepted. The purpose of the Notice of Appeal is to put both the trial court and the appellate court on notice that an appeal is forthcoming.  Trial Record. Once the Notice of Appeal is filed the trial court prepare the trial record to be sent up to the appellate court. The trial record is a
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  6 literal, wordfor word, record of everything that was said during the trial. Along with the transcript of the trial, all exhibits introduced at the trial become part of the record on appeal. The record is sent to the appropriate appellate court, either the Appellate Division of the Superior Court or the California Court of Appeals.  Briefs.An appeal is decided largely (or entirely) on the written record submitted to the appellate court. Along with the trial record, both sides may file an appellate brief. The defendant’s (appellant’s) brief outlines the issues on appeal and argues in favor of vacating the verdict based on those issues.  Oral Argument. Sometimes, the appellate court requests oral arguments from the parties. This is an opportunity for the court to question the parties regarding issues on appeal. In addition, it provides another chance for your attorney to convince the court that your verdict should be vacated because of errors made during trial.  Decision. The appellate court may affirm the guilty verdict or may reverse the verdict. If the court affirms the verdict you may appeal that decision to a higher court. When an appellate court reverses a trial court verdict the case it usually sent back to the trial court for further proceedings. If you were recently convicted at trial of a criminal offense in California you have a right to appeal that conviction and/or the sentence you received as a result of that conviction. Though the law guarantees you the right to appeal the law also limits the time within which you must assert your right. Contact
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  7 an experiencedCalifornia criminal defense appeals attorney immediately to find out what options are available to you. California Courts, How Criminal Cases Work Justia, Criminal Appeals
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  8 About theAuthor Domenic J Lombardo Domenic J. Lombardo, (Attorney at Law) graduated from University of California, Los Angeles (U.C.L.A.), earning a B.A. in Economics-Business, before graduating with his J.D. from University of California, Hastings School of Law. He passed the California Bar Examination on the first try, and immediately began practicing as a criminal defense attorney in San Diego, California. Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public Defender from 1991 to early 1996. Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as aa sole practitioner dedicated entirely to the defense of individuals accused of crimes. And while Mr. Lombardo works as the primary attorney for all his cases, he does have a team of investigators, forensic consultants, and paralegals to call on to help achieve the best possible result in every case. When he is not working, Mr. Lombardo is an avid family man, triathlete, and world traveler. The Law Office of Domenic J Lombardo The Executive Complex 1010 Second Ave., Ste. 1820 San Diego, CA 92101 www.AttorneyLombardo.com