Fill and Sign the Cr 131 Info Information on Appeal Procedures for

CR-131-INFOInformation on Appeal Procedures for Misdemeanors1 What does this information sheet For information about appeal procedures in othercover? cases, see:This information sheet tells you about appeals in •Information on Appeal Procedures for Infractionsmisdemeanor cases. It is only meant to give you a (form CR-141-INFO)general idea of the appeal process, so it does not covereverything you may need to know about appeals in •Information on Appeal Procedures for Limitedmisdemeanor cases. To learn more, you should readCivil Cases (form APP-101-INFO)rules 8.800–8.816 and 8.850–8.890 of the CaliforniaRules of Court, which set out the procedures forYou can get these forms at any courthouse or countymisdemeanor appeals. You can get these rules at anylaw library.courthouse or county law library.instructions given to the jury, and misconduct by the2What is a misdemeanor? jury that harmed the appellant. When it conducts its review, the appellate division presumes that theA misdemeanor is a crime that can be punished by jail judgment, order, or other decision being appealed istime of up to one year, but not by time in state prison. correct. It is the responsibility of the appellant to(See Penal Code sections 17 and 19.2. You can get a show the appellate division that an error was madecopy of these laws at www.leginfo.ca.gov/calaw.html.) If and that the error was harmful.you were also charged with or convicted of a felony,then your case is a felony case, not a misdemeanor case. •No substantial evidence: The appellant may also ask the appellate division to determine if there was3What is an appeal? substantial evidence supporting the judgment, order, or other decision being appealed. When it conductsAn appeal is a request to a higher court to review a its review, the appellate division only looks to see ifdecision made by a lower court. In a misdemeanor there was evidence that reasonably supports thecase, the court hearing the appeal is the appellate decision. The appellate division generally will notdivision of the superior court and the lower court— reconsider the jury’s or trial court’s conclusion aboutcalled the “trial court” in this information sheet—iswhich side had more or stronger evidence or whetherthe superior court. witnesses were telling the truth or lying.It is important to understand that an appeal is NOT a The appellate division generally will not overturn thenew trial. The appellate division will not consider new judgment, order, or other decision being appealedevidence, such as the testimony of new witnesses or newunless the record clearly shows that one of these legalexhibits. The appellate division’s job is to review aerrors was made.record of what happened in the trial court and the trialcourt’s decision to see if certain kinds of legal errors 4Do I need a lawyer to appeal?were made in the case:You do not have to have a lawyer; you are allowed to•Prejudicial error: The party that appeals (called the represent yourself in an appeal in a misdemeanor case.“appellant”) may ask the appellate division to But appeals can be complicated, and you will have todetermine if an error was made about either the law follow the same rules that lawyers have to follow. If youor court procedures in the case that causedhave any questions about the appeal procedures, yousubstantial harm to the appellant (this is calledshould talk to a lawyer.“prejudicial error”). Prejudicial error can include things like errors made by the judge about the law, errors or misconduct by the lawyers, incorrect_____________________________________________________________________________Judicial Council of California Information on Appeal Procedures CR-131-INFO, Page 1 of 8New January 1, 2009, Optional FormCal. Rules of Court, rules 8.800–8.889 for Misdemeanorsele ctr o nic f o rm  2 009 WWW.LawCA.com La w P ublis h ers CR-131-INFOInformation on Appeal Procedures for MisdemeanorsIf you are representing yourself, you must inform the convicted of committing the misdemeanor. The othercourt if your address, telephone number, or other contact party is called the RESPONDENT; in a misdemeanorinformation changes so that the court can contact you ifcase, this is usually the government agency that filed theneeded. criminal charges (on court papers, this party is called thePeople of the State of California).5How do I get a lawyer to represent me?7 Can I appeal any decision that the trialThe court is required to appoint a lawyer to represent court made?you if you are indigent (you cannot afford to pay for alawyer) and: No. Generally, you may appeal only the final judgment—the decision at the end that decides the whole case.•Your punishment includes going to jail or paying a The final judgment includes the punishment that thefine of more than $500 (including penalty and other court imposed. Other rulings made by the trial courtassessments) or before final judgment generally cannot be separately appealed, but can be reviewed only later as part of an•You are likely to suffer other significant harm as a appeal of the final judgment. In a misdemeanor case, theresult of being convicted. party convicted of committing a misdemeanor usually appeals that conviction or the sentence (punishment) ordered by the trial court. In aThe court may, but is not required to, appoint a lawyer to misdemeanor case, a party can also appeal from:represent you on appeal in other circumstances if you are • An order granting or denying a motion to suppressindigent. You are automatically considered indigent if evidence (Penal Code section 1538.5(j))you were represented by the public defender or othercourt-appointed lawyer in the trial court. You will also • An order made by the trial court after judgment thatbe considered indigent if you can show that your income affects a substantial right of the appellant (Penaland assets are too low to pay for a lawyer. Code section 1466(2)(B))If you think you are indigent, you can ask the court to8 How do I start my appeal?appoint a lawyer to represent you for your appeal. Youtells the other party in the case and the trial courtFirst, you must file a notice of appeal. The notice of appealmay use Request for Court-Appointed Lawyer in that you are appealing the trial court’s decision. YouMisdemeanor Appeal (form CR-133) to ask the court to may use Notice of Appeal (Misdemeanor) (formappoint a lawyer to represent you on appeal in a CR-132) to prepare and file a notice of appeal in amisdemeanor case. You can get form CR-133 at any information about finding a lawyer on the California courthouse or county law library. any misdemeanor case. You can get form CR-132 atIf you want a lawyer and you are not indigent or if the courthouse or county law library.court turns down your request to appoint a lawyer, youmust hire a lawyer at your own expense. You can get 9Is there a deadline for filing my notice Courts Online Self-Help Center. of appeal? Yes. Except in the very limited circumstances listed in 6Who can appeal? rule 8.853(b), in a misdemeanor case, you must fileOnly a party in the trial court case can appeal a decision your notice of appeal within 30 days after the trial courtin that case. You may not appeal on behalf of a friend, a makes (“renders”) its final judgment in your case orspouse, a child, or another relative. issues the order you are appealing. (You can get a copyThe party that is appealing is called the APPELLANT; of rule 8.853 at any courthouse or county law library.)in a misdemeanor case, this is usually the party_____________________________________________________________________________ New January 1, 2009 Information on Appeal Procedures CR-131-INFO, Page 2 of 8 for Misdemeanors CR-131-INFOInformation on Appeal Procedures for Misdemeanors Other parts of your punishment, such as fines or The date the trial court makes its judgment is probation conditions, will be postponed (“stayed”), onlynormally the date the trial court issues its order if you request a stay and the court grants your request. Ifsaying what your punishment is (sentences you). you want a stay, you must first ask the trial court for aThis deadline for filing the notice of appeal cannot stay. You can also apply to the appellate division for abe extended. If your notice of appeal is late, the stay, but you must show in your application to appellateappellate division will not be able to consider division that you first asked the trial court a stay and thatyour appeal. the trial court unjustifiably denied your request. If you do not get a stay and you do not pay your fine or complete another part of your punishment by the date10How do I file my notice of appeal? ordered by the court, a warrant may be issued for your arrest or a civil collections process may be started against you, which could result in aTo file the notice of appeal in a misdemeanor case, you civil penalty being added to your fine.must bring or mail the original notice of appeal to theclerk of the trial court that made the judgment or 12 What do I need to do after I file myissued the order you are appealing. It is a good idea to appeal?bring or mail an extra copy to the clerk and ask the clerk to stamp it to show that the original You must tell the trial court whether you want a recordhas been filed. of what was said in the trial court (this is called a record of the “oral proceedings”) sent to the appellate division There is no fee for filing the notice of appeal in a and, if so, what form of that record you want to use.misdemeanor case. You can ask the clerk of that court if You may use Notice Regarding Record of Oralthere are any other requirements for filing your notice of Proceedings(Misdemeanor) (form CR-134) for this notice.appeal. (You can get form CR-134 at any courthouse or countyAfter you file your notice of appeal, the clerk will send a law library.) You must file this notice either:copy of your notice of appeal to the office of theprosecuting attorney (for example, the district attorney, (1) within 20 days after you file your notice ofcounty counsel, city attorney, or state Attorney General). appeal, or, if it is later11If I file a notice of appeal, do I still have (2) within 10 days after the court decides whether to go to jail or complete other parts of to appoint a lawyer to represent you (if you askmy punishment? the court to appoint a lawyer within 20 days after you file your notice of appeal).Filing the notice of appeal does NOT automatically 13 In what cases does the appellatepostpone your punishment, such as serving time in jail, division need a record of what waspaying fines, or probation conditions. said in the trial court?If you have been sentenced to jail in a misdemeanor You do not have to send the appellate division a recordcase, you have a right to be released either with or of what was said in the trial court. But if you want towithout bail while your appeal is waiting to be decided, raise any issue in your appeal that would require thebut you must ask the court to set bail or release you. If raise any issue in your appeal that would require thethe trial court has not set bail or released you after your appellate division to consider what was said in the trialnotice of appeal has been filed, you must ask the trial court, the appellate division will need a record of thesecourt to set bail or release you. If the trial court deniesoral proceedings. For example, if you are claiming thatyour release or sets the bail amount higher than youthere was not substantial evidence supporting thethink it should be, you can apply to the appellate judgment, order, or other decision you are appealing,division for release or for lower bail. the appellate division will need a record of the oral_____________________________________________________________________________ New January 1, 2009 Information on Appeal Procedures CR-131-INFO, Page 3 of 8 for Misdemeanors CR-131-INFOInformation on Appeal Procedures for Misdemeanorsproceedings. Since the appellate division judges were reporter made a record of your case before younot there for the proceedings in the trial court, an official choose this option.record of these oral proceedings must be prepared andsent to the appellate division for its review. Cost: Ordinarily, the appellant must pay for preparing a reporter’s transcript. The courtDepending on what form of the record you choose to reporter will provide the clerk of the trial courtuse, you will be responsible for paying to have the with an estimate of the cost of preparing theofficial record of the oral proceedings prepared (unless transcript and the clerk will notify you of thisyou are indigent) or for preparing an initial draft of thisestimate. If you want the reporter to prepare arecord yourself. If you do not take care of these transcript, you must deposit this estimated amountresponsibilities, a record of the oral proceedings in the with the clerk within 10 days after the clerk sendstrial court will not be prepared and sent to the appellate you the estimate.division. If the appellate division does not receive thisrecord, it will not be able to consider what was said in If, however, you are indigent (you cannot afford tothe trial court in deciding whether a legal error was pay the cost of a reporter’s transcript), you may bemade. able to get a free transcript. If you were represented by the public defender or another court-appointed lawyer in the trial 14 What are the different forms of the court, you are automatically consideredrecord? indigent. If you were not represented by a court- appointed lawyer in the and file Defendant’sThere are three ways a record of the oral proceedings in Financial Statement on Eligibility for Appointmentthe trial court can be prepared and provided to the of Counsel and Reimbursement and Record onappellate division in a misdemeanor case: Appeal at Public Expense (form MC-210), to showa.If a court reporter was there during the trial court that you are indigent. You can get form MC-210 atproceedings, the reporter can prepare a record called a “reporter’s transcript.”any courthouse orcounty law. The court will review this form tob.If the proceedings were officially electronically decide whether you are indigent. recorded, the trial court can have a transcript prepared from that recording; or if the court has a If you are indigent, a court reporter made alocal rule permitting this and you and the record of your case, and you show that you needrespondent (the prosecuting agency) agree a transcript, the court must provide you with a free(“stipulate”) to this, you can use the official transcript. Whether you need a transcript dependselectronic recording itself as the record, instead ofon the issues you are raising on appeal. If thea transcript. issues you are raising on appeal include that there was not substantial evidence supporting c. You can use a statement on appeal. the judgment, order, or other decision you are appealing or that there was misconduct Read below for more information about these options. in your case that harmed you, that is generally enough to show that you need a a. Reporter’s transcript transcript. If you ask for a reporter’s transcript, the court may ask you what When available: In some misdemeanor cases, a issues you are raising on appeal and maycourt reporter is there in the trial court and makes decide that a statement on appeal or aa record of the oral proceedings. If a court reportertranscript of only some of the oralmade a record of your case, you can ask to have proceedings will be a good enough recordthe court reporter prepare a transcript of those oral to consider the issues you are raising.proceedings, called a “reporter’s transcript.” Youshould check with the trial court to see if a court _____________________________________________________________________________ New January 1, 2009 Information on Appeal Procedures CR-131-INFO, Page 4 of 8 for Misdemeanors CR-131-INFOInformation on Appeal Procedures for MisdemeanorsCompletion and delivery: Once you deposit the The court will review this form to decideestimated cost of the transcript or show the court whether you are indigent.you are indigent and need a transcript, the clerkwill notify the reporter to prepare the transcript.When the reporter completes the transcript, the If you are indigent, an official electronic recordingclerk will send the reporter’s transcript to the of your case was made, and you show that youappellate division. need a transcript, the court must provide you with a free transcript. Whether you need a transcriptb.Official electronic recording or transcript depends on the issues you are raising on appeal. Iffrom an official recording the issues you are raising on appeal include that there was not substantial evidence supporting theWhen available: In some misdemeanor cases, thejudgment, order, or other decision you aretrial court proceedings are officially recorded onappealing or that there was misconduct in yourapproved electronic recording equipment. If your case that harmed you, that is generally enough tocase was officially recorded, you can ask to have ashow that you need a transcript. If you ask for atranscript prepared from that official electronic transcript, the court may ask you what issues yourecording. You should check with the trial court toare raising on appeal and may decide that asee if your case was officially electronically statement on appeal or a transcript of only some ofrecorded before you choose this option. the oral proceedings will be a good enough record to consider the issues you are raising.If the court has a local rule for the appellatedivision permitting this and all the parties agree Completion and delivery: Once you deposit the(“stipulate”), a copy of the official electronic estimated cost of the transcript or the officialrecording itself can be used as the record of the electronic recording with the clerk or show theoral proceedings instead of preparing a transcript. court you are indigent and need a transcript, theYou should check with the trial court to see if your clerk will have the transcript or copy of thecase was officially electronically recorded andrecording prepared. When the transcript ischeck to make sure there is a local rule permitting completed or the copy of the official electronicthe use of the recording itself before choosing thisrecording is prepared, the clerk will send theoption. If you choose this option, you must attachtranscript or recording to the appellate division.a copy of your agreement with the other parties(called a “stipulation”) to your notice regarding c.Statement on appealthe oral proceedings.Description: A statement on appeal is a summaryCost: Ordinarily, the appellant must pay for of the trial court proceedings approved by the trialpreparing a transcript or making a copy of the court judge who conducted those proceedings (theofficial electronic recording. If, however, you are term “judge” includes commissioners andindigent (you cannot afford to pay the cost of the temporary judges).transcript or recording), you may be able to get afree transcript or recording. If you were When available: If the trial court proceedingsrepresented by the public defender or another were not recorded either by a court reporter or bycourt-appointed attorney in the trial court, you are official electronic recording equipment, or if youautomatically considered indigent. If you were notdo not want to use either of these forms of therepresented by a court-appointed lawyer in the record, you can choose (“elect”) to use a statementtrial court, you can complete and file Defendant’s on appeal as the record of the oral proceedings inFinancial Statement on Eligibility for Appointment the trial court (please note that it may take more ofof Counsel and Reimbursement and Record on your time to prepare a statement on appeal than toAppeal at Public Expense (form MC-210) to show use either a reporter’s transcript or electronicthat you are indigent. You can get form MC-210 at recording, if they are available).any courthouse or county law library._____________________________________________________________________________ New January 1, 2009 Information on Appeal Procedures CR-131-INFO, Page 5 of 8 for Misdemeanors CR-131-INFOInformation on Appeal Procedures for MisdemeanorsContents: A statement on appeal must include a proposed statement to the clerk when you filesummary of the oral proceedings that the appellant your original and ask the clerk to stamp thisbelieves necessary for the appeal and a summary copy to show that the original has been filed.of the trial court’s decision. It must also include astatement of the points the appellant is raising on You can get more information about how to serveappeal. (See rule 8.869 of the California Rules of court papers and proof of service from What IsCourt for more information about what must be Proof of Service? (form APP-109-INFO) and onincluded in a statement on appeal and the the California Courts Online Self-Help Center.procedures for preparing a statement. You can getthis rule at any courthouse or county law library. Review and modifications: The prosecutingPreparing a proposed statement: If you choose to attorney and any other party have 10 days from theuse a statement on appeal, you must prepare a date you serve your proposed statement to serveproposed statement. If you are not represented by and file proposed changes (called “amendments”)a lawyer, you must use Proposed Statement on to this statement. The trial court judge thenAppeal (Misdemeanor) (form CR-135) to prepare reviews both your proposed statement and anyyour proposed statement. You can get form proposed amendments and makes any correctionsCR-135 at any courthouse or county law library. or modifications to the statement needed to make sure that the statement provides a complete and accurate summary of the trial court proceedings. Serving and filing a proposed statement: Youmust serve and file your proposed statement in theCompletion and certification: If the judge makestrial court within 20 days after you file your notice any corrections or modifications to the proposedregarding the record of the oral proceedings. statement, the corrected or modified statement will“Serve and file” means that you must: be sent to you, the prosecuting attorney, and any•Have somebody over 18 years old who is not a other party for your review. If you disagree withparty to the case—so not you—mail or deliveranything in the judge’s statement, you will have(“serve”) a copy of the proposed statement to 10 days from the date the statement is sent you tothe prosecuting attorney and any other party inserve and file objections to the statement. Thethe way required by law. judge then reviews any objections, makes any additional corrections to the statement, and•Make a record that the proposed statement hascertifies the statement as a complete and accuratebeen served. This record is called a “proof of summary of the trial court proceedings.service.” Proof of Service (Appellate Division)(form APP-109) can be used to make this Sending the statement to appellate division: Oncerecord. The proof of service must show who the trial court judge certifies the statement onserved the proposed statement, who was appeal, the trial court clerk will send the statementserved with the proposed statement, how the to the appellate division along with the clerk’sproposed statement was served (by mail or intranscript.person), and the date the proposed statementwas served. 15Is there any other part of the record that needs to be sent to the appellate•File the original proposed statement and thedivision?proof of service with the trial court. Youshould make a copy of the proposed statement Yes. There are two other parts of the official record thatyou are planning to file for your own records need to be sent to the appellate division:before you file it with the court. It is a good •Documents filed in the trial court: The trial courtidea to bring or mail an extra copy of the clerk is responsible for preparing a record of the____________________________________________________________________________ New January 1, 2009 Information on Appeal Procedures CR-131-INFO, Page 6 of 8 for Misdemeanors CR-131-INFOInformation on Appeal Procedures for Misdemeanorswritten documents filed in your case, called aserving, and filing briefs in misdemeanor appeals,“clerk’s transcript,” and sending this to the appellateincluding requirements for the format and length ofdivision. (The documents the clerk must include in those briefs. You can get copies of these rules at anythis transcript are listed in rule 8.861 of thecourthouse or county law library. California Rules of Court. You can get a copy of thisrule at any courthouse or county law library. Contents: If you are the appellant (the party who is appealing), your brief, called the “appellant’s opening •Exhibits submitted during trial: Exhibits, such as brief,” must clearly explain what you believe are thephotographs, that were admitted in evidence, legal errors made in the trial court. Your brief must referrefused, or lodged (temporarily placed with the to the exact places in the clerk’s transcript and thecourt) in the trial court are considered part of the reporter’s transcript (or other record of the oralrecord on appeal. If you want the appellate division proceedings) that support your argument. Rememberto consider such an exhibit, however, you must ask that an appeal is not a new trial. The appellate divisionthe trial court clerk to send the original exhibit to the will not consider new evidence, such as the testimony ofappellate division within 10 days after the last new witnesses or new exhibits, so do not include anyrespondent’s brief is filed in the appellate division. new evidence in your brief.(See rule 8.870 of the California Rules of Court formore information about this procedure. You can get Serving and filing: You must serve and file your brief ina copy of this rule at any courthouse or county law the appellate division by the deadline the court set in thelibrary or online at www.courtinfo.ca.gov/rules.) notice it sent you, which is usually 30 days after theSometimes, the trial court returns an exhibit to a record is filed in the appellate division. “Serve and file”party at the end of the trial. If the trial court returnedmeans that you must:an exhibit to you or another party and you or the •Have somebody over 18 years old who is not a partyother party ask for the exhibit to be sent to theappellate division, the party who has the exhibit to the case—so not you—mail or deliver (“serve”)must deliver that exhibit to the appellate division asthe brief to the respondent (the prosecuting agency)soon as possible. and any other party in the way required by law.•Make a record that the brief has been served. This16What happens after the record is record is called a “proof of service.” Proof of Serviceprepared? (Appellate Division) (form APP-109) can be used to make this record. The proof of service must showAs soon as the record of the oral proceeding is ready, the who served the brief, who was served with the brief,clerk of the trial court will send it to the appellate how the brief was served (by mail or in person), anddivision along with the clerk’s transcript. When the the date the brief was served.appellate division receives this record, it will send you anotice telling you when you must file your brief in the •File the original brief and the proof of service withappellate division. the appellate division. You should make a copy of the brief you are planning to file for your own 17 What is a brief? records before you file it with the court. It is a good idea to bring or mail an extra copy of the brief to the A brief is a party’s written description of the facts in the clerk when you file your original and ask the clerk tocase, the law that applies, and the party’s argument about stamp this copy to show that the original has beenthe issues being appealed. If you are represented by a filed.lawyer in your appeal, your lawyer will prepare yourbrief. If you are not represented by a lawyer in your You can get more information about how to serve courtappeal, you will have to prepare your brief yourself. You papers and proof of service from What Is Proof ofshould read rules 8.880–8.891 of the California Rules of Service? (form APP-109-INFO). Court, which set out the requirements for preparing,____________________________________________________________________________ New January 1, 2009 Information on Appeal Procedures CR-131-INFO, Page 7 of 8 for Misdemeanors CR-131-INFOInformation on Appeal Procedures for MisdemeanorsIf you do not file your brief by the deadline set by the 21What happens after oral argument?appellate division, the court may dismiss your appeal.After the oral argument is held (or the date it was18What happens after I file my brief? scheduled passes if all the parties waive oral argument), the judges of the appellate division will make a decisionWithin 30 days after you serve and file your brief, the about your appeal. The appellate division has 90 daysrespondent (the prosecuting agency) may, but is notafter the date scheduled for oral argument to decide therequired to, respond by serving and filing a respondent’s appeal. The clerk of the court will mail you a notice ofbrief. If the respondent does not file a brief, the appellantthat decision.does not automatically win the appeal. The court will decide the appeal on the record, the appellant’s brief, and any oral argument by the appellant. 22What should I do if I want to give up my appeal? If the respondent serves and files a brief, within 20 days If you decide you do not want to continue with yourafter the respondent’s brief was served, you may, but areappeal, you must file a written document with thenot required to, serve and file another brief replying to appellate division notifying it that you are giving up (thisthe respondent’s brief. This is called a “reply brief.” is called “abandoning”) your appeal. You can useAbandonment of Appeal (Misdemeanor) (form CR-137)19What happens after all the briefs have to file this notice in a misdemeanor case. You can getbeen filed? form CR-137 at any courthouse or county law library.Once all the briefs have been served and filed or the timeto serve and file them has passed, the court will notify If you decide not to continue your appeal and it isyou of the date for oral argument in your case. dismissed, you will (with only very rare exceptions)permanently give up the chance to raise any objections20What is oral argument? to your conviction, sentence, or other matter that you could have raised on the appeal. If you were released from custody with or without bail or“Oral argument” is the parties’ chance to explain their your sentence or any probation conditions werearguments to the appellate division judges in person. stayed during the appeal, you may be required to startYou do not have to participate in oral argument if you doserving your sentence or complying with your probationnot want to; you can notify the appellate division that conditions immediately after your appeal is dismissed.you want to “waive” oral argument. If all parties waiveoral argument, the judges will decide your appeal based on the briefs and the record that were submitted. But if one party waives oral argument and another party or parties does not, the appellate division will hold oral argument with the party or parties who did not waive it.If you choose to participate in oral argument, you will have up to 10 minutes for your argument, unless the court orders otherwise. Remember that the judges will already have read the briefs, so you do not need to read your brief to the judges. It is more helpful to tell the judges what you think is most important in your appeal or ask the judges if they have any questions you could answer.____________________________________________________________________________ New January 1, 2009 Information on Appeal Procedures CR-131-INFO, Page 8 of 8 for Misdemeanors