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Common Grounds for Appeal after Sentence (Part 2 of 3)
The following article should be read in conjunction with “Common Grounds for Appeal after Sentence (Part 1 of 2),” which is linked below. It lists five common grounds for appeal after one receives a certificate of probable cause after a plea is entered.
Continuing on with the list of grounds for appeal one may seek to argue after securing a certificate of probable cause, such grounds may include:
- The judge acted in excess of his or her jurisdiction by allowing defendant to plead to a legally impossible crime. People v. Soriano (1992) 4 Cal. App. 4th 781, 784, 6 Cal. Rptr. 2d 138 (court had no power to allow defendant to enter plea to attempting to file a forged “instrument,” where the document was by law not an instrument); but see People v. Ellis (1987) 195 Cal. App. 3d 334, 342-343, 240 Cal. Rptr. 708 (although defendant incorrectly admitted that prior conviction was a serious felony, he was not allowed to undo the plea because of other benefits he obtained); People v. Miller (2012) 202 Cal. App. 4th 1450, 1452, 1458, 136 Cal. Rptr. 3d 529 (although it was error to allow defendant to plead guilty to a felony when the charge was only a misdemeanor, defendant was not allowed to vacate plea because of other benefits he received); and / or
- The judge failed to ascertain that there was a factual basis for the plea. People v. Holmes (2004) 32 Cal. 4th 432, 436, 9 Cal. Rptr. 3d 678. Penal Code section 1192.5 requires that before the court accepts a guilty or no contest plea bargain, it must satisfy itself that there is a factual basis for the plea. It should be noted that this requirement does not apply to “open pleas” where there is no benefit promised to the defendant. People v. Hoffard (1995) 10 Cal. 4th 1170, 1181, 43 Cal. Rptr. 2d 827.
If a certificate of probable cause is obtained, an appellant may raise all issues challenging the validity of the plea or sentence, even if some of the issues were not included in the certificate request. Hoffard, supra.
A person who has been convicted and who has little or no money has the right to be appointed counsel on appeal. Griffin v. Illinois (1956) 351 U.S. 12, 76 S. Ct. 585; 100 L. Ed. 891; Douglas v. California (1963) 372 U.S. 353, 83 S. Ct. 814; 9 L. Ed. 2d 811.
A discussion of provisions for the appointment of appellate counsel and the requirement of competent appellate counsel is set forth in People v. Scott (1998) 64 Cal. App. 4th 550, 563-564, 75 Cal. Rptr. 2d 315.
An appellant in a criminal case, however, has no right to represent themselves on appeal. Martinez v. Court of Appeal (2000) 528 U.S. 152, 163, 120 S. Ct. 684; 145 L. Ed. 2d 597; People v. Scott (1998) 64 Cal.App.4th 550, 579, 75 Cal. Rptr.2d 315. Each court of appeal district in California has an “appellate program” office that is responsible for appointing, training, and supporting appellate attorneys who handle criminal cases.
A person appealing a criminal case is also entitled to have transcripts of the superior court proceedings provided at state expense. However, rhe transcripts will usually be kept by the person’s attorney while the appeal is in process. In re Henderson (1964) 61 Cal. 2d 541, 542, 39 Cal. Rptr. 373.
Once the notice of appeal is filed, the court clerks and reporters who kept records of the proceedings will prepare the transcripts and send them to the court of appeal and the attorneys for both sides.
For most felony convictions, a court has the discretion to set bail while the appeal is pending. The exception is that bail may not be granted for a crime punishable by death. Penal Code § 1272.
Unless released on bail, an appellant with a short sentence will often serve all or most of their sentence before the appeal is decided. However, in reality, release on bail pending appeal happens in very few felony cases. Even if a court were to set bail, it can be very difficult to raise the large amount of funds needed to pay bail.
This article would not have been possible without reference to the Prison Law Office’s excellent treatise, California Prison and Parole Law Handbook. We thank them for this work.
