Reprinted from February 1996 Contra Costa Lawyer with permission of the Contra Costa County Bar Association
A PROCEDURAL ROADMAP TO CIVIL AND CRIMINAL APPEALS
by John T. Schreiber and Julie Schumer
Despite your valiant efforts, the court decided against your client. All post-trial motions have been made and the record preserved. Your client is prepared for the financial, time, and emotional commitment necessary to pursue an appeal. The question is how. This article provides a procedural guide for handling both civil and criminal appeals.
Notice of Appeal
The first step is to file a notice of appeal with the superior court signed by the appellant or his or her attorney that describes the judgment or order appealed form. Under California Rule of Court 1(a), the notice need not contain any specific wording, since the appellate court must give the benefit of the doubt to the appellant in determining whether the notice suffices. A simple statement that the appeal is from a judgment or appealable order that states the date of entry of the judgment or appealable order, and preferably the name of the trial judge, will suffice. In civil cases a $250 check payable to the Clerk of the Court of Appeal must accompany the notice unless the appellant can show indigence. Rule 1(c),(d).
The deadline for filing a notice of appeal in civil cases is the earliest of either 60 days of notice of entry of judgment or 180 days of the date of entry of judgment if no notice is given. Rule 2(a). This deadline is jurisdictional. If you miss the deadline the appeal will be time-barred and the court of appeal will have no jurisdiction whatsoever to hear the appeal, regardless of its merits. The superior court would, of course, have jurisdiction over the later legal malpractice case against you if the appeal was otherwise valid.
A few further notes of caution: First, under Rule 2(a) service of a file-stamped copy of the appealable order or judgment qualifies as notice of entry, starting the clock. Second, if you are appealing from an appealable order (a subject beyond the scope of this article), and the court issues a minute order without specifically directing counsel for the prevailing party to prepare an order after hearing, the clock starts running from the date of the minute order (60 days if the minute order is file-stamped, 180 days if not). Rule 2(b); Hughey v. City of Hayward (1994) 24 Cal.App.4th 204. Finally, if you file your notice of appeal too early, before judgment is even rendered, an overworked appellate court may not exercise its discretion under Rule 2(c) to "save" it by deeming a later-filed judgment entered the day before notice was filed. See Hill v. City of Long Beach(1995) 33 Cal.App.4th 1684; Shpiller v. Harry C.ís (1993) 13 Cal.App.4th 1177; Jordan v. Malone (1992) 5 Cal.App.4th 18; Modica v. Merin (1991) 234 CalApp.3d 1072.
In a criminal case, a Notice of Appeal must be filed within 60 days of the rendition of the judgment. [Rule 31(d).]
Initiating an appeal from a guilty or nolo contendere plea may prove a trap for the unwary. Rule 31(d) and Penal Code section 1237.5 require that such an appeal based on issues affecting the validity of the plea will not be operative unless the appellant first obtains a certificate of probable cause from the trial judge. This requirement is excused if the appeal is from an adverse ruling on a search and seizure motion or raises sentencing error. [Rule31(d).]
The request for the certificate, which acts as an intended notice of appeal, must be filed with the trail court within 60 days from the time of judgment. The trial court then has 20 days in which to execute and file the certificate, or decline to do so. The trial courtís refusal to execute the certificate may be challenged by a petition for writ of mandate filed in the Court of Appeal. Failure to obtain a certificate of probable cause when one is required will result in the Court of Appealís refusal to consider the merits of the appeal.
Designating the Record
The next step is to designate the record. This is critical. The record chosen in an appeal is what the appellate court relies on in making its decision. Failure to timely designate the record can lead to dismissal under Rule 10.
The deadline for designating the record is within 10 days of filing notice of appeal. Rules 4,5,5.1, 5.2. The appellant can designate the record either in a separate document or in the same document as the notice of appeal. Rule 5(a).
The main components of the appellate record are:
* The Reporterís transcript, obtained by specifying the date and departments of the oral proceedings (if in different courts, or if the appeal challenges a pretrial ruling) and by paying a deposit at the time of filing of $325 per half day, $650 per full day or by obtaining a waiver and estimate directly from the court reporter(s). The court reporter will not begin transcription until he or she is paid, either the amount of the estimate or deposit. If the Reporterís Transcript is, for some reason, unavailable or unaffordable, a settled statement may be used. Rules 6, 7.
* The Clerkís Transcript, obtained by stating the name and filing date of the document in the clerkís file to be included in the record and by paying a $100 deposit at the time of filing, with the balance payable upon completion. The Respondent may also designate additional materials. Rule 5(b).
Alternatives to this method of designating the record include using appendices or a joint appendix in lieu of a Clerkís Transcript, to be filed with the briefs. Rule 5.1. One major difficulty with this method is that although this method may be less expensive than a Clerkís Transcript, there may be difficulties in locating the necessary papers. Where permitted by District Court of Appeal rules, the parties can stipulate to use the Superior Court file. Rule 5.2.
In al felony appeals, the defendantís copy of the record on appeal is free.
Rule 33(a) sets forth the contents of the "normal" record on appeal for both the clerkís and reporterís transcripts. The clerkís transcript is to include the charging document, the preliminary hearing transcript, all written motions and opposing points and authorities, any search warrants and returns thereto, minutes of all court proceedings, an abstract of judgment, all written jury instructions given and refused, any written communication between the court and jurors, the probation report and any certified documents used to prove a prior conviction or prison prior. The reporterís transcript is to contain all oral proceedings relating to trial and sentencing and any hearing of a Penal Code Section 1538.5 motion. In the First District, pursuant to local rule 4(2), the reporterís transcript is to include the hearings of essentially all in limine motions made by the defendant denied in whole or in part.
If part of the "normal" record on appeal is missing from either the clerkís or reporterís transcript, you may obtain it by way of a letter request addressed to the appeals clerk of the Superior Court. [Rule 35(e), local rule 6.] If what you are missing is not part of the "normal" record, such as jury voir dire, file an application to augment the record describing specifically what you need and why you need it. Local rule 6 requires that such applications must be made within 30 days from the filing of the record in the Court of Appeal, and must be filed in good faith and not for purposes of delay.
A good percentage of criminal cases involve the introduction into evidence of a taped statement of either the defendant or a witness which is played for the jury but not reported. Rule 203.5 requires that any party proffering a tape, either audio or video, must tender a transcript, which is to be included in the clerkís transcript. If it is missing, ask that it be included via a Rule 35(e) letter.
Exhibits properly identified as such, whether they were admitted into evidence or rejected, are automatically part of the record on appeal in a criminal case. [Rule 33(a)(3).] If you wish the Court of Appeal to consider a particular exhibit, you can either (1) request in your opening brief that the court on its own motion order the exhibit up from the Superior Court; or (2) request pursuant to Rule 10(d) that it be so transmitted once you have received notice that the matter has been calendared for oral argument. This latter procedure under Rule 10(d) also applies in civil appeals.
Where Required, File a Docketing Statement in Civil Cases.
The 1st, 4th (Div. 1 and 2 only) and 6th (via Rule 19.5) Districts require an appellant to file a docketing statement or its equivalent with that court of appeal. The Docketing Statement allows the Court to make an early determination of the case's timeliness and appealability and can subject the appeal to dismissal if the statement is not filed. For example, the local rules of the 1st and 4th Districts require the statement to be filed within 10 days after filing the notice of appeal. Often, however, the court of appeal will send you blank forms to fill out when you obtain your appellate case number. Call the appellate court clerk if you are uncertain.
Filing an Appellate Brief
The Proper Form of an Appellate Brief
The proper form of an appellate brief in either a civil or criminal case is described in Rules 15, 37, 40 and 44.
Rule 15 details the requirements for type size, margin width and the weight of the paper that must be used. Plain white paper is required. Briefs must be bound "in appropriate manuscript covers," meaning cardstock covers with the pertinent case information printed on the front. Each of the various types of briefs, petitions or answers must have a particular color cover. Rule 44(c) provides this information.
Briefs must contain a topical index, table of authorities, procedural history, factual summary and arguments separately numbered with descriptive headings. Statements from the record must be supported with an appropriate citation. [Rule 15.]
A proof of service is required, showing service on the trial judge, opposing counsel, and in criminal cases on the district attorney and appellant as well. [Rule 16(b), (c), 37(a).] Serve five copies of your brief on the California Supreme Court in a civil case. [Rule 44(b)(1)(ii).] Rule 44(b) lists the number of copies of the 13 types of briefs, petitions or answers to be filed with the court.
The Briefing Schedule
An appellantís opening brief in a civil case must be filed within 30 days from the filing of the record on appeal with the Court of Appeal, in a criminal case within 40 days. The respondentís brief must be filed within 30 days after the filing of the opening brief. A reply brief must be filed within 20 days from the filing of the respondentís brief. [Rule 16(a),37(a).]
If you need more time, you can, in a civil case, stipulate to an extension of up to 60 days. After that you must file a request for extension of time, supported by good cause. Rule 45.5 specifies what constitutes good cause. In a criminal case, you may obtain additional time only by filing a formal request containing the requisite good cause.
Another alternative in the case of the opening brief only is to let the deadline pass. The Court of Appeal will then send you a letter advising that if the brief is not filed within 15 days in a civil case or 30 days in a criminal case, the appeal may be dismissed unless good cause for your default can be shown. [Rule 17(a), 16(c).] The First District encourages counsel not to file a formal extension request if the brief can be filed within the additional time afforded by Rule 17(a).
Oral argument does not arise until after the court has reviewed the briefs and the record, usually several months after the reply brief was filed. If you represent appellant, do not waive oral argument. It usually represents your last chance to persuade the appellate court about the merits of your appeal or to answer any questions the justices may have. However, appeals briefs are far more important to the courtís decision-making process than oral argument. The court almost always has a calendar memorandum or draft opinion prepared (the 4th District in San Bernadino sends out tentative opinions to parties prior to oral argument!)
To obtain oral argument, file your request in response to the appellate courtís invitation to request or waive, usually within the 10-15 day deadline listed on the courtís notice. In rare cases, the court may request oral argument on specified issues. In the 1st and 5th Districts one or both of the parties can present oral argument by telephone. State if you want to argue by telephone when requesting oral argument.
Oral argument takes place several weeks to months after the request. Each side has 30 minutes. Rule 22. The appellant will often want to reserve time to rebut.
The Opinion and Beyond
Unless the court orders supplemental briefing, the case is submitted to the court for decision at the close of oral argument. You can expect to receive an opinion from the court within 90 days from the end of the month in which the case is submitted. If you are the losing party, you may wish to consider filing a petition for rehearing in the Court of Appeal or a petition for review in the California Supreme Court. The deadlines and other requirements involved in filing these petitions are described in Rules 27, 28, and 29.
This article contains only a brief overview of the appellate process, which can take a year or more from start to finish. If you find yourself involved in an appeal, our advice is to carefully study the applicable rules of court, Rules 1-69, which are your Field Guide for appellate procedure. *