How Does a Criminal Appeal Work in California? Misdemeanor and Felony Appeals Explained

Q: How long do I have to file a criminal appeal in California?

Sixty days for a felony and 30 days for a misdemeanor. Rule 8.308 of the California Rules of Court sets the 60-day felony deadline and rule 8.853 of the California Rules of Court sets the 30-day misdemeanor deadline, both counted from the day the judgment is rendered or the order is made. The notice is filed in the superior court where you were sentenced.

Q: Can I appeal after pleading guilty or no contest in California?

Only on limited grounds. Penal Code section 1237.5 requires a certificate of probable cause from the trial judge to appeal any issue going to the validity of the plea. You can appeal the denial of a suppression motion under Penal Code section 1538.5, subdivision (m), and post-plea sentencing errors without a certificate.

Q: Does filing an appeal stop my sentence?

Not automatically. You must ask for bail or a stay pending appeal under Penal Code section 1272. Misdemeanor defendants are generally entitled to bail pending appeal, while felony defendants must satisfy the findings in Penal Code section 1272.1 and are often denied.

Q: Can new evidence be presented on appeal?

No. The appellate court decides the case on the record made in the trial court. New evidence is raised through a habeas corpus petition or, in some cases, a motion for new trial under Penal Code section 1181 filed before sentencing.

Q: Do I need a lawyer to appeal a criminal conviction in California?

Yes, as a practical matter. Appeals are governed by detailed rules on timing, record preparation, and briefing, and an indigent defendant is entitled to appointed appellate counsel. Daniel Gramling, Esq. can evaluate whether a conviction from a Riverside, San Bernardino, High Desert, Los Angeles, or Orange County court has appealable issues or is better addressed by a trial-court motion, and offers flat-fee and limited-scope options for post-conviction work.

Daniel Gramling, Esq.

8 minutes ago

13 min read

What a Criminal Appeal Is and Is Not

The short answer: a criminal appeal in California asks a higher court to review what happened in the trial court for legal error. It is not a new trial, no new evidence is presented, and no witnesses testify. The appellate court reads the transcripts and the written briefs and decides whether a legal mistake affected the outcome. Felony appeals go to the Court of Appeal and must be started within 60 days of sentencing. Misdemeanor appeals go to the appellate division of the superior court and must be started within 30 days. Miss the deadline and the right to appeal is almost always gone. Gramling Law Group evaluates convictions from Riverside, San Bernardino, the High Desert, Los Angeles, and Orange County for appealable error and handles the trial-court side of post-conviction relief.

Why people misunderstand appeals. Clients often expect that an appeal means a second chance to tell the story. It does not. If the jury believed the officer and not you, that credibility decision is almost never disturbed on appeal. What appeals are good at is correcting legal errors: evidence that should have been suppressed, a jury instruction that misstated the law, a sentence the statute did not permit, a plea taken without proper advisements, or a judge who denied a motion for the wrong reason. Knowing the difference is the first step in deciding whether an appeal is worth filing.

What Can Be Appealed in a California Criminal Case

Appealable judgments and orders. Penal Code section 1237 gives a defendant the right to appeal from a final judgment of conviction, which includes an order granting probation, and from any order made after judgment that affects the defendant's substantial rights. That second category covers denials of motions to withdraw a plea, denials of resentencing petitions, probation revocations, and similar post-judgment orders. Misdemeanor appeals are governed by Penal Code section 1466, which gives both the defendant and the People the right to appeal specified orders in the superior court's appellate division.

Appeals after a guilty or no contest plea. A plea gives up most appellate issues, and Penal Code section 1237.5 requires a defendant who pleaded guilty or no contest to obtain a certificate of probable cause from the trial judge before appealing any issue that goes to the validity of the plea. Two categories do not need a certificate: a challenge to the denial of a suppression motion, which Penal Code section 1538.5, subdivision (m), expressly preserves after a plea, and issues arising after the plea that do not attack its validity, such as sentencing error. Our guides to How to Withdraw a Guilty Plea in California: Penal Code 1018 and What Is a No Contest Plea in California? Penal Code 1016 explain what a plea waives and when it can be undone in the trial court first.

Pretrial orders and writs. Most pretrial rulings cannot be appealed before judgment. Instead they are challenged by a writ petition, which is discretionary and must be filed quickly. The denial of a motion to set aside the information under Penal Code section 995 is reviewed by writ under Penal Code section 999a, and a suppression ruling under Penal Code section 1538.5 can be taken up by writ within the time the statute sets. We explain the underlying motions in What Is a 995 Motion in California? and What Is a 1538.5 Motion and When Can You File One?. The People also have limited appeal rights under Penal Code section 1238, which is why a dismissal in the trial court is not always the end, as discussed in Can the DA Refile Charges After a Dismissal in California? Penal Code 1387.

The Deadlines: 60 Days for Felonies, 30 Days for Misdemeanors

Felony notice of appeal. Under rule 8.308 of the California Rules of Court, a notice of appeal in a felony case must be filed in the superior court within 60 days after the rendition of the judgment or the making of the order being appealed. The judgment is rendered at sentencing, not at the verdict, so the clock starts on the day the sentence is pronounced. The Judicial Council form for a defendant's felony appeal is CR-120, and the request for a certificate of probable cause is made on the same form under rule 8.304 of the California Rules of Court. The notice is filed with the clerk of the superior court where you were sentenced, whether that is the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, or the Clara Shortridge Foltz Criminal Justice Center in Los Angeles, and the clerk then transmits it to the Court of Appeal.

Misdemeanor notice of appeal. Under rule 8.853 of the California Rules of Court, a notice of appeal in a misdemeanor case must be filed within 30 days after the rendition of the judgment or the making of the appealable order. The form is CR-132, and the appeal is heard by the appellate division of the same superior court, a panel of superior court judges assigned to hear misdemeanor and infraction appeals. Infraction appeals follow a similar path with their own rules. A misdemeanor defendant who is in custody or on probation should file the notice first and sort out the issues later, because the deadline does not wait for the lawyer to finish reviewing the file.

Late notices. A notice filed one day late is generally rejected, and the exceptions are narrow. A defendant who asked trial counsel to file a notice of appeal and whose counsel failed to do so may be able to obtain relief through a petition for constructive filing, and a defendant whose late notice resulted from counsel's error may have a claim of ineffective assistance. Neither is a plan. If there is any chance you want to appeal, the notice should be filed well before the deadline and can be abandoned later if the appeal is not pursued.

Bail and Stays While the Appeal Is Pending

Felony bail pending appeal. Filing a notice of appeal does not automatically stop a sentence. Penal Code section 1272 allows the trial court to admit a defendant to bail pending appeal, and for a felony it is a matter of the court's discretion after the findings required by Penal Code section 1272.1, which include that the appeal is not for delay, that it raises a substantial legal question, and that the defendant is not a flight risk or danger. In practice, bail pending appeal is granted sparingly in felony cases, and a defendant sentenced to state prison or county jail under Penal Code section 1170, subdivision (h), usually serves time while the appeal is pending. How sentences are structured is explained in How Does Sentencing Work in California Criminal Court?.

Misdemeanor stays. For a misdemeanor, Penal Code section 1272 treats bail pending appeal as a matter of right in most cases, and a stay of a county jail sentence, a fine, or probation conditions while a misdemeanor appeal is pending is commonly requested at the sentencing hearing itself. A defendant who wants a stay should ask the sentencing judge before leaving the courtroom. Probation can be stayed too, but the time on appeal does not count toward the probation term if the stay is granted, so the decision involves a trade-off worth discussing with counsel. Probation mechanics are covered in How Does Probation Work in California?.

The Record, the Briefs, and the Decision

The record on appeal. After the notice is filed, the superior court clerk prepares the clerk's transcript, which contains the complaint or information, the minute orders, the jury instructions, the verdict forms, and the written motions, and the court reporters prepare the reporter's transcript, which is the word-for-word record of what was said in open court. Rule 8.320 of the California Rules of Court sets out what the normal record in a felony appeal contains. Anything not in the record did not happen as far as the appellate court is concerned, which is why trial objections and offers of proof matter so much.

Appointed counsel on appeal. A defendant who cannot afford an appellate attorney is entitled to appointed counsel on a first appeal as of right under Douglas v. California (1963) 372 U.S. 353. In the Fourth District, which hears appeals from Riverside and San Bernardino County, appointed counsel are assigned through the appellate project that serves that district. If appointed counsel finds no arguable issue, counsel files a brief under People v. Wende (1979) 25 Cal.3d 436, which follows Anders v. California (1967) 386 U.S. 738, and the court independently reviews the record for error. Private appellate counsel is an option for defendants who want a specific attorney and a more targeted review, and the choice is similar to the one described in Public Defender vs. Private Attorney in California.

Briefing. The appellant files an opening brief that identifies each claimed error, cites the record page where it happened, and explains why it requires reversal. The Attorney General, who represents the People in felony appeals, files a respondent's brief, and the appellant may file a reply. In misdemeanor appeals the district attorney or city attorney responds. Rule 8.360 of the California Rules of Court governs the content and timing of felony briefs. Oral argument is available but is often waived, and the court then issues a written opinion.

What the court can do. Penal Code section 1260 allows the appellate court to reverse, affirm, or modify the judgment, to reduce the degree of the offense or the punishment, and to remand for a new trial or for resentencing. A reversal for insufficient evidence bars retrial under the double jeopardy principle in Burks v. United States (1978) 437 U.S. 1, but a reversal for trial error such as an evidentiary mistake generally sends the case back for a new trial, where the prosecution gets another chance. Clients should understand that the most common appellate outcome is affirmance and the second most common is a remand for resentencing, not a dismissal.

Standards of Review and Harmless Error

Why the standard of review decides most appeals. The appellate court does not ask whether it would have ruled differently. For factual findings and discretionary rulings, such as whether to admit evidence under Evidence Code section 352 or how to weigh sentencing factors, the court asks only whether the trial judge abused discretion. For pure legal questions, such as the meaning of a statute or whether a jury instruction was correct, the court decides for itself. For a claim that the evidence was insufficient, the court views the record in the light most favorable to the verdict and asks whether any rational jury could have found guilt beyond a reasonable doubt, the standard from Jackson v. Virginia (1979) 443 U.S. 307 and People v. Johnson (1980) 26 Cal.3d 557.

Harmless error. Even when the appellant proves an error, the conviction stands if the error was harmless. For errors of federal constitutional dimension, the People must show the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. For most state-law errors, the appellant must show a reasonable probability of a more favorable result under People v. Watson (1956) 46 Cal.2d 818. A great deal of appellate litigation is about which standard applies, because an error that is prejudicial under Chapman may be harmless under Watson.

Preserving issues at trial. Most errors must have been objected to in the trial court to be raised on appeal, which is why the trial record matters. A suppression issue not raised under Penal Code section 1538.5, a discovery violation not pursued under the rules described in How Does Discovery Work in a California Criminal Case?, or an instructional error not objected to can be forfeited. One exception is a sentence the law did not authorize, which can be corrected at any time, although Penal Code section 1237.1 requires that a claimed error in presentence custody credits be raised first in the trial court.

Appeal vs. Habeas Corpus vs. Trial-Court Motions

When habeas is the right tool. An appeal is limited to the record. A claim that trial counsel was ineffective, that the prosecution hid evidence, that a juror was biased, or that new evidence shows innocence usually depends on facts outside the transcripts and is raised by a petition for writ of habeas corpus under Penal Code section 1473 rather than by appeal. The standard for ineffective assistance comes from Strickland v. Washington (1984) 466 U.S. 668, which requires both deficient performance and prejudice. Habeas petitions are often filed alongside the appeal so the court can consider both.

Trial-court remedies that do not require an appeal. Many problems clients bring to us are better solved in the sentencing court than in the Court of Appeal. A motion to withdraw a plea under Penal Code section 1018 before judgment, a motion to vacate under Penal Code section 1473.7 for immigration-related error, a reduction under Penal Code section 17, subdivision (b), as described in How to Reduce a Felony to a Misdemeanor in California, early termination of probation under Penal Code section 1203.3, covered in How to Terminate Probation Early in California, and a dismissal under Penal Code section 1203.4, covered in How to Expunge a Criminal Record in California, are all trial-court motions. Restitution orders can also be challenged in the trial court, as explained in Restitution in a California Criminal Case: Penal Code 1202.4.

Appeal and resentencing laws. California has enacted a series of resentencing statutes that allow certain defendants to return to the trial court for a new sentence regardless of whether an appeal was filed or succeeded. These statutes change frequently and have eligibility rules, and the trial court, not the appellate court, is where the petition starts. A conviction that looks final on paper may still have a resentencing path, and that question is worth asking before concluding that nothing can be done.

Where Appeals From Southern California Courts Are Heard

The Fourth District. Felony convictions from the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Larson Justice Center in Indio, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Fontana courthouse, the Victorville courthouse serving Victorville, Hesperia, Apple Valley, and Adelanto, the Barstow courthouse, and the Joshua Tree courthouse are appealed to the Fourth District Court of Appeal, Division Two, which sits in Riverside. Orange County felonies from the Central Justice Center in Santa Ana, the Harbor Justice Center, the North Justice Center in Fullerton, and the West Justice Center in Westminster go to Division Three in Santa Ana. High Desert clients can start with our Victorville criminal defense and Barstow criminal defense pages.

The Second District. Felony convictions from Los Angeles County courthouses, including the Clara Shortridge Foltz Criminal Justice Center, Van Nuys, Pomona, Long Beach, Torrance, Compton, Pasadena, the Airport Courthouse, and the Antelope Valley courthouse in Lancaster, and from the Ventura County Hall of Justice, are appealed to the Second District Court of Appeal in Los Angeles. Misdemeanor appeals from every one of these courthouses stay within the county, in that superior court's appellate division. Confirm filing locations and current procedures on the court's website, because the clerk's office that accepts the notice of appeal is the trial court's, not the appellate court's.

After the Court of Appeal. A party who loses in the Court of Appeal can petition the California Supreme Court for review under rule 8.500 of the California Rules of Court, which is discretionary and granted in a small fraction of cases. A misdemeanor appellant who loses in the appellate division can ask that the case be certified or transferred to the Court of Appeal, which is likewise discretionary. Federal habeas review is possible after state remedies are exhausted and has its own strict one-year deadline.

Deciding Whether to Appeal

Questions that drive the decision. Was there a contested legal ruling, a suppression motion, an instruction dispute, or a sentencing issue in the record? Was the sentence one the statute allowed? Did the plea colloquy comply with the advisement requirements? Is the client in custody, so that time matters more than the issue? What is the risk of a retrial if the appeal succeeds? A candid evaluation of these questions is what a good appellate consultation provides. Our general guide to evaluating case strength, What Makes a Criminal Case Weak in California?, applies with equal force to the trial record.

Timing and cost. Felony appeals in the Fourth and Second Districts commonly take a year or more from notice to decision, and misdemeanor appeals in the appellate division are somewhat faster. Appointed counsel is free to an indigent defendant, while private appellate representation is a fixed-scope engagement in most firms. For a sense of how long the trial-level case itself takes, see How Long Does a Criminal Case Take in California?. If you are still deciding whether to go to trial in the first place, What Happens at a Criminal Jury Trial in California? and Should You Take a Plea Deal in California? cover the decision that most affects your appeal rights.

Frequently Asked Questions

How long do I have to file a criminal appeal in California?

Sixty days for a felony and 30 days for a misdemeanor. Rule 8.308 of the California Rules of Court sets the 60-day felony deadline and rule 8.853 of the California Rules of Court sets the 30-day misdemeanor deadline, both counted from the day the judgment is rendered or the order is made. The notice is filed in the superior court where you were sentenced.

Can I appeal after pleading guilty or no contest in California?

Only on limited grounds. Penal Code section 1237.5 requires a certificate of probable cause from the trial judge to appeal any issue going to the validity of the plea. You can appeal the denial of a suppression motion under Penal Code section 1538.5, subdivision (m), and post-plea sentencing errors without a certificate.

Does filing an appeal stop my sentence?

Not automatically. You must ask for bail or a stay pending appeal under Penal Code section 1272. Misdemeanor defendants are generally entitled to bail pending appeal, while felony defendants must satisfy the findings in Penal Code section 1272.1 and are often denied.

What is the difference between an appeal and a writ of habeas corpus?

An appeal reviews the trial record; habeas presents new facts. An appeal under Penal Code section 1237 is limited to what is in the transcripts. A habeas petition under Penal Code section 1473 raises claims that depend on evidence outside the record, such as ineffective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668 or newly discovered evidence.

Can new evidence be presented on appeal?

No. The appellate court decides the case on the record made in the trial court. New evidence is raised through a habeas corpus petition or, in some cases, a motion for new trial under Penal Code section 1181 filed before sentencing.

Do I need a lawyer to appeal a criminal conviction in California?

Yes, as a practical matter. Appeals are governed by detailed rules on timing, record preparation, and briefing, and an indigent defendant is entitled to appointed appellate counsel. Daniel Gramling, Esq. can evaluate whether a conviction from a Riverside, San Bernardino, High Desert, Los Angeles, or Orange County court has appealable issues or is better addressed by a trial-court motion, and offers flat-fee and limited-scope options for post-conviction work.

Talk to a Southern California Criminal Defense Lawyer About Your Conviction

Gramling Law Group defends criminal cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Victorville courthouse, the Rancho Cucamonga courthouse, the Clara Shortridge Foltz Criminal Justice Center in Los Angeles, the Central Justice Center in Santa Ana, and criminal courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California, and evaluates convictions for appeal and post-conviction relief. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so you know the cost of a consultation and a record review before you commit. Call (909) 654-4575 or contact us through this website for a consultation.

This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.