What Is a Petition for Rehearing?Published on April 29, 2020
After a case is appealed and the decision does not go in your favor, you may feel like you are out of options. However, there is a possible route that your attorney may explore: a petition for rehearing. This petition has strict time limits and requirements, so it is important to discuss it with your attorney as soon as your appeal decision comes through.
Understanding a Petition for Rehearing
After you file an appeal and your case goes to the appellate court, they pass down their decision. The petition for rehearing is a way to contest the appellate court’s decision.
This isn’t the time to try out a new defense angle or fight to have evidence analyzed in a different way. It is primarily used to resolve errors made by the appellate court during the appeal trial. It takes a careful and exhaustive legal review of the court’s decision to find useful flaws.
When is a Petition for Rehearing Appropriate?
When you discuss the outcome of your appeal with your appeals attorney, they will help you understand your options. If they recommend a petition for rehearing, it means that your case falls into one of a few categories.
Situations in which a petition for rehearing may be appropriate include:
- If the court’s decision focused on an issue that was not included in your attorney’s briefs
- If the court’s opinion ignores or omits an important fact or issue raised during the case
- When a fact is misstated or misrepresented and influences the appellate court’s decision
- A legal error is made
- If there are concerns over due process
The Deadline for a Petition for Rehearing
A petition for rehearing in California must be filed within 15 days of the appellate court’s decision. This is a very tight deadline, which is why your attorney will explore and explain your options as soon as the original decision is handed down.
What Happens Next
Several things could happen after your attorney files a petition for rehearing. The court might deny the petition immediately with a written order. This is fairly common, as it is relatively uncommon for the court to realize they’ve made a mistake and reverse it.
If they deny your petition, they may still modify the original opinion to reflect the information presented.
The court may also agree that an error was made in their decision. They may issue a new decision reflecting the new information. They may also request additional briefs or oral arguments from your attorney for additional clarification. After receiving this information, they will pass down their new decision.
If the court does not respond to the petition before the original decision becomes final, the petition is considered to have been automatically denied.
Other Options After an Appeal
Your attorney may also recommend filing a review. This strategy is often used if your case poses a new legal question or issue. It is also helpful if there are constitutional violations in the original decision or handling of the case.
Once your options have been exhausted in the appellate process, you may be able to pursue a Supreme Court review.
Find Out How We Can Help With Your Appeal
Appealing a court decision can be complicated and time-consuming, which is why it is crucial to work with an attorney who focuses on criminal appeals in their practice.
At Spolin Law P.C., we fight appeals in state and federal courts. Get started now by calling us at (310) 424-5816 or reach out online. We will schedule a free consultation and explore your legal options.
Release of Famous Inmate, Tekashi69, Due to Coronavirus Leads to Questioning About ProtocolPublished on April 20, 2020
A famous rapper, Tekashi69, was released four months before his original release date, sentenced to spend the final months in home confinement. Tekashi69, formally known as Daniel Hernandez, 23, was originally sentenced to two years in prison after pleading guilty to various gang robberies and shootings. Due to the fact that the artist has asthma, he is at greater risk to adverse effects were he to contact Coronavirus, justifying his shortened sentence.
According to the New York Times, the judge, U.S. District Judge Paul A. Engelmayer, argued that “the pandemic presented ‘extraordinary and compelling reasons’ for a compassionate release of Mr. Hernandez, who, he wrote in his order on Thursday, ‘no longer will present a meaningful danger to the community if at liberty.’” Currently, people are wondering if he was released early because of his celebrity status or because he is immunocompromised.
Hernandez’s release comes at a controversial time, as criminal justice advocates and health officials alike are supporting the release of inmates to increase social distancing and decrease the spread of COVID-19. The New York Times describes this phenomenon with; “thousands of inmates and officers in municipal, state and federal facilities have already tested positive, and at least five inmates at federal facilities have died because of the coronavirus outbreak since March 28, according to the Bureau of Prisons.”
However, this decision to release Tekashi69 has led to backlash and questioning from other inmates, especially fellow high-profile inmates. Both R. Kelly and Bill Cosby have argued for at-home confinement to finish out their terms, without success. What is unique about rapper Tekashi69’s case is that he has had underlying health issues since the beginning, combined with his cooperation with authorities and the short remainder of his sentence. Some argue that if R. Kelly or Bill Cosby were released too, people might assume they are getting special treatment because of their fame. Therefore, judges are trying to exercise caution when it comes to early inmate releases, making sure they have a strong justification for each case.
Some states have decided to take broader strokes to address the risk of Coronavirus spreading in prisons by releasing a large number of inmates at once. An order was signed last week by the Chief Justice of New Jersey, Stuart Rabner, to release 1,000 inmates from county jails who committed low-level offences.
At the same time, some federal decisions have been made to prevent the further spread of Coronavirus. Mr. Barr, the Attorney General, has put an order in place to prioritize the release of inmates at three prisons, in Louisiana, Connecticut, and Ohio, which have reported high numbers of Corona cases. Last week, Mr. Barr
“Asked the bureau to identify and release all inmates who were eligible for home confinement, no longer posed a threat to the public, and were particularly vulnerable to the Coronavirus. After that directive, 522 of the system’s 146,000 total inmates were moved to home confinement, according to the Bureau of Prisons,” (New York Times).
Judges are asked to draw the line between who can be released early and who must stay in prison, in a fair yet timely manner. A prison in Chicago that currently obtains the most concentrated coronavirus cases in the United States, demonstrates the necessity to make these drastic changes. It is vitally important that judges take precautionary measures to prevent further spread of the disease, while also making equitable choices about who can be released and who must remain in prison to carry out their full sentences.
Malcolm Alexander: Wrongful Conviction Vacated After 38 YearsPublished on April 13, 2020
Unfortunately, wrongful convictions occur in the United States quite often, and the process of vacating these false convictions can take many years. This was the case for Malcolm Alexander, who fell victim to incorrect eyewitness identification, an incompetent defense attorney, and lost evidence.
In 1980 Malcolm Alexander was arrested and convicted for a rape he did not commit. The rape, which took place in 1979, was linked to Malcolm Alexander solely by eyewitness identification. The victim initially described the attacker as a 6ft tall male, but eventually, though somewhat uncertain, identified Alexander. The victim was attacked from behind and did not identify Malcolm Alexander until four months after the rape had occurred. Even then, the police incorrectly conducted the perpetrator line-ups and only regarded her identification as “tentative.”
This incorrect eyewitness fits a pattern in wrongful conviction cases. Eyewitness identification is the number one reason for wrongful convictions. Specifically, 71% of wrongful conviction cases are due to an incorrect eyewitness identification. In fact, in the legal profession, there is growing evidence against the accuracy of eyewitness identification; one in four is incorrect. (See criminal appeals attorney Aaron Spolin’s book, Witness Misidentification in Criminal Trials, to read about this topic in greater depth).
While most humans believe they can recognize those that have caused them or others harm, the misidentification stems from a variety of factors. Some of the most crucial factors are: witnesses being under high levels of stress, witnesses tending to concentrate more on weapons than the identity of the perpetrator, police or prosecutors using suggestive tactics to sway witnesses while they are in the identification process, and more.
In the case of Malcolm Alexander, the witness was both in an extremely high-stress situation as she underwent a rape, and did not have a good line of sight to the attacker — both of which could have led to the misidentification. In spite of the victim’s uncertain identification, the trial for Malcolm Alexander was quick. The lawyer defending Mr. Alexander did not point out any of the inconsistencies with the witness identification, nor promote another narrative of his innocence. In fact, the lawyer defending Malcolm Alexander presented neither opening nor closing arguments on behalf of his client, nor did he call any witnesses to defend Mr. Alexander. The entire trial of Mr. Alexander lasted one day. In spite of the existence of DNA evidence, including pubic hairs and semen, neither attorney requested that DNA testing be completed. Malcolm Alexander was 21 years old, and the father of a two-year-old, who was then given life without parole.
Malcolm Alexander advocated for his innocence while he was in prison, and eventually, the Innocence Project picked up the case. Unfortunately, the innocence project faced many challenges. Most notably, the evidence from the case had been destroyed by the New Orleans Police Department. However, after a continuous push from the Innocence Project, the pubic hairs from the scene were recovered.
After 38 years in prison in Louisiana, Malcolm Alexander was exonerated, thanks to the evidence found by the attorneys working on his case. A sample of his pubic hair did not match the pubic hair left by the perpetrator at the crime scene. Malcolm Alexander was released from prison on January 30th, 2018.
- “MALCOLM ALEXANDER.” Malcolm Alexander – National Registry of Exonerations, University of Michigan Law, 6 Feb. 2018, www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5274.
- “Eyewitness Identification Reform.” Innocence Project, www.innocenceproject.org/eyewitness-identification-reform/.
- “Malcolm Alexander.” Innocence Project New Orleans (IPNO), 30 Jan. 2018, ip-no.org/what-we-do/free-innocent-prisoners/client-profiles/malcolm-alexander/.
Fights to end the School-to-Prison pipelinePublished on April 7, 2020
The term ‘School to Prison Pipeline,’ also known as ‘Cradle to Prison Pipeline’ describes the disproportionate impact of historical education policies, such as zero tolerance, on people of color and vulnerable populations. The effect of this is more students being sent to juvenile detention centers with an inevitable increase in racial inequality. Typically, lower-income schools use stricter behavior management systems that implement immediate punishment, instead of using positive reinforcement and other positive behavioral strategies. In lieu of this, some steps have been made in the right direction by politicians, such as Bernie Sanders and Ayanna Pressley, who are joining the fight to end School-to-Prison pipelines. Addressing and amending this issue will set in motion a long-overdue fight to reach equality in the United States.
According to an article written on neaToday, “In 2010, more than 3 million students were suspended from school, aka double the level of suspensions in the 1970s. Meanwhile, more than a quarter-million were “referred” to police officers for misdemeanor tickets, very often for offenses that once would have elicited a stern talking-to.” NEA shares another reason that students are more likely to go to Juvenile Detention Centers if they live in low-income areas is because there are less school resources and more budget cuts. This results in less educational staff monitoring at any given moment, and instead filling those gaps with school police officers. In-school officers are constantly monitoring the ongoings of students in a more strict manner, which leads to an increase of student punishments.
Specifically, Black students represent 15% of public school students, yet they represent 31% of all students referred to law enforcement, and other students of color are also disproportionately arrested in schools (specifically Native American, and LatinX). When these students are kicked out of school they are left with nowhere to go and no community to hold on to. Often, many students get involved in illegal activity and drugs and alcohol due to their lack of direction and school time.
This trend is reflected across multiple underrepresented groups. People with disabilities face harsher punishments than their able-bodied counterparts, especially in affluent schools, according to Huffington Post. “In affluent schools, students with disabilities are overrepresented among students who receive suspensions by 20 points, while in low-income schools, they are overrepresented by nearly 11 points.” This can cause issues because studies show that students who are suspended at least once during their secondary education are more likely to drop out of school, and more likely to enter the criminal justice system. However, some critics argue that less suspensions means more dangerous and disruptive students in the classroom, which can pose a threat to other students and staff members.
As the presidential election of 2020 has begun to ramp up, various left-leaning candidates have spoken up about the need to change the school-to-prison pipeline trajectory. According to a Buzzfeed article, both Elizabeth Warren and Bernie Sanders have learned about the injustices in the school systems, primarily for students of colors, and have agreed to provide more resources to low-income schools, if elected.
Another politician, Ayanna Pressley, a United States Representative for Massachusetts’ 7th district (including the city of Boston), and the first black woman elected to Congress from Massachusetts, has spoken up about ending the School-to-Prison Pipeline in the HuffPost. Pressley has specifically focused her activism on young black girls. HuffPost shares that black girls are “five times more likely to be suspended than white girls, according to a 2017 report from the National Women’s Law Center, which used data from the U.S. Department of Education’s Office for Civil Rights from 2013-2014.”
In December 2019, Pressley announced criminal justice proposals, which included the Ending PUSHOUT Act, aiming to stop discriminatory punishment in schools, specifically for black and brown students. The Ending PUSHOUT Act, which stands for Punitive, Unfair, School-Based Harm, that is Overt and Unresponsive to Trauma, would bring in money to provide teachers with implicit bias training, hire more school counselors and social workers, and change school discipline regulations based on community input. In order to be eligible for the program, schools have to decrease suspensions and expulsions, and ban corporal punishment for all students. Pressley is one of the first politicians, after President Obama, to take concrete steps towards fighting the School to Prison Pipeline that currently exists in our society and causes extreme disadvantage to students of color.
As Pressley articulately stated, “We must work in partnership with communities to develop holistic solutions that center the lived experiences of girls of color who have been most impacted by cruel and discriminatory school policies and practices.” Especially as President Trump decreases regulations already in place to help the most at-risk populations, we must fight to end the School-to-Prison Pipeline and provide all students with equitable opportunities. This is one necessary action to reach the goal of facing inequality in the United States and prevent unnecessary crowding in juvenile detention centers with innocent youth.
Early Release of Prisoners Due to CoronavirusPublished on April 2, 2020
Coronavirus is spreading like wildfire, affecting every single industry and institution- including the criminal justice system. Due to overcrowding in prisons and jails, social distancing is nearly impossible. Many local governments are taking matters into their own hands. In hopes of decreasing the number of people who have contracted or could contract COVID-19, they are canceling all visitation rights and/or allowing for an early release of inmates who have committed low-level crimes.
According to the Boston Globe, prison populations are at a higher risk of contracting serious health issues compared to the general population. “Many [inmates] are elderly, and have diabetes, cardiovascular disease, asthma, and cancer, conditions that, if they become infected with COVID-19, make them more likely to require intensive care and especially vulnerable to dying of the disease.” Specifically, about 40% of incarcerated people are already suffering from chronic health conditions, and therefore at higher risk of adverse outcomes if infected. If prisoners were to contract COVID-19 at the anticipated population rates, it would exacerbate the already overwhelmed health care staff and facilities.
As seen in South Korea at the Daenam Prison Hospital, Coronavirus will spread rapidly if appropriate measures are not taken. In Daenam prison, 101 inmates contracted coronavirus, resulting in 7 deaths, according to the New York Times. All but three people living in the prison at the time contracted Coronavirus. This is a prime example justifying the extreme measures being taken by governments regarding the criminal justice system.
In the United States, one specific county jail in Los Angeles, Alameda County, is taking precautionary measures to prevent the spread of the virus. In early March, the county Sheriff’s Office announced their plan to modify sentences, and subsequently release about 250 inmates. Additionally, Sheriff Alex Villanueva from Los Angeles has directed police officers and deputies alike to cite and release people instead of arresting them. As a result, throughout the county of Los Angeles, arrests have dropped from 300 to 60 daily, and jail populations have decreased by over 600 inmates.
Simultaneously, various civil rights advocacy groups are fighting to get more prisoners released. According to the Los Angeles Times, some advocates called the Los Angeles Sheriff’s Department asking to release inmates with 30 days or left on their sentences and to specifically take precautionary measures for vulnerable inmates- elderly or those with previous health conditions. For example, Senator Kamala Harris is strongly advocating for the release of low-risk inmates on Twitter. “She is pushing the Bureau of Prisons to release ‘all low-risk inmates, including those who are in pretrial detention because they can’t afford to make bail.’ She noted that people ‘in detention are especially vulnerable to the spread of coronavirus,’” according to NPR.
For all these reasons, the government is noticing it is vitally important that the criminal justice system take action immediately to reduce the number of people in confinement. One way this is being done is by reclassifying misdemeanors, such as low-level offenses that do not harm public safety, into non-jailable offenses. Additionally, people who have not yet been convicted, such as those in pretrial detention, can be released to prevent unnecessary prison crowding. While these controversial measures may seem extreme, they are essential in preventing the rapid spread of COVID-19.
California Criminal Appeals: Terms & DefinitionsPublished on March 29, 2020
A guilty verdict is not always the end of the road. You still have options even after a conviction in California. The criminal appeals process offers you the chance to appeal an unfair judgment and have your conviction reviewed.
However, appealing a case is complex and requires careful attention to deadlines, filing requirements, and other details that can impact the outcome of your case. As the premier California appeals attorneys, Spolin Law, P.C. has provided some of the key terms used in the California criminal appeals process. These may help you understand what to expect.
Criminal Appeals: Key Terms
- Brief — A brief is a written statement that details one side’s arguments. In an appeal, a brief usually outlines why the court made a mistake or supports the prior ruling.
- Case Law — To understand how the law applies to your case, you have to look at how the law was interpreted in previous court decisions. Case law is another name for legal precedent.
- Court of Appeals — The court that reviews decisions made by lower courts; Also known as a state appellate court.
- Decree — A formal order that is legally enforceable.
- Finding — A decision made by the court or jury after an examination or investigation. The judge announces their finding after deliberation.
- Lower Court — When a decision is reviewed during an appeal, the lower court’s decision is the one being reviewed. Typically in reference to district courts, lower court decisions are reviewed by a superior court.
- Motion Practice — A party uses a motion practice to ask for relief from the court. A motion is how an issue is brought to the court for a decision. Common examples include motions to dismiss charges, compel action, or exclude certain evidence.
- Notice of Appeal — When you decide to appeal a lower court’s decision, you file a notice of appeal with the superior court. This starts the official appeals process.
- Opinion — When your case goes to the court of appeals, three or more judges hear your case. After they make a decision, they provide an explanation of their decision and the influencing factors.
- Oral Arguments — During oral arguments, lawyers from both sides summarize their points and take questions from the judge.
- Relief — Post-conviction relief gives the defendant the opportunity to provide more evidence or bring up additional issues after a decision has been reached. If evidence supports it, your relief can include a fair resolution.
- Petitioner — The party who requests an appeal and submits a notice of appeal to the court is the petitioner.
- Precedent — This is similar to “case law.” It refers to previous court decisions in similar cases to the one being heard. Judges may look at the precedent set by previous cases when trying a new case.
- Pro Se — Pro se representation is when an individual does not have an attorney and chooses to represent themselves in court.
- Respondent — The party that did not request the appeal is the respondent.
- Stay Pending Appeal — A stay pending appeal offers temporary relief from the judgment of the court until the court can rule on the appeal.
- Superior Court — During the appeal process, the superior court is the one that reviews the decision made by the lower court.
- Trial Court — The trial court is the court with original jurisdiction over a criminal case.
- Writ — This is a written court order that tells a party to act or abstain from acting in a specific way. For example, a Writ of Habeas Corpus asks the court to review the terms of imprisonment.
Why You Need an Appeals Attorney
If you want to appeal a court decision made against you, you need the assistance of an experienced appeals attorney. Your lawyer can review your official case file to look for mistakes that may strengthen your argument. An appeals attorney will help you navigate this process, avoid roadblocks, and meet strict deadlines.
Contact Spolin Law Today
Attorney Aaron Spolin of Spolin Law, P.C. was previously a prosecutor and now an award-winning criminal defense and appeals attorney. With extensive appeals experience and a record of overturning unjust convictions, when the system has wronged you and you need to appeal, turn to Spolin Law.
Spolin Law P.C. Announces 2019 Winner of Civil Rights and Criminal Law Essay Competition & ScholarshipPublished on March 24, 2020
Spolin Law P.C. is proud to announce the winner of their 2019 Spolin Law P.C. Civil Rights and Criminal Law Scholarship. The Spolin Law P.C. team has chosen Meena Venkataramanan, who will receive a $1,000 scholarship to use toward tuition and other educational expenses.
Created in 2017, the Spolin Law P.C. Civil Rights and Criminal Law Scholarship was developed to support students whose work brings awareness to civil rights issues. This falls in line with the firm’s overarching goals of representing individuals whose rights have been violated and protecting each person’s right to be treated with dignity.
Meena Venkataramanan was chosen as the 2019 winner for her impressive curriculum vitae, the scope of her work as a writer and editor, and her leadership initiatives. Ms. Venkataramanan is working toward an A.B. in English and South Asian Studies, with a secondary focus in Government. She will matriculate in May 2021. In addition to writing and editing for The Harvard Advocate, ABC News, and The Harvard Crimson, Ms. Venkataramanan also serves in several organizational leadership roles. She is the founder of Stories from the Border and the founder/president of the Harvard South Asian Americans in Public Service (SAAPS) Initiative.
Ms. Venkataramanan’s essay, titled “The Spirit of Our Constitution,” explores troubling ties between the mass internment of Japanese-Americans during World War II and the current political climate of the United States. Throughout the essay, she points to legal decisions that have upheld the rights of Americans and draws attention to missteps of the American legal system. Her essay explores the fallout of decisions that take away Americans’ rights and considers the future of the democracy if the values described in the Constitution are not upheld.
In “The Spirit of Our Constitution,” Ms. Venkataramanan draws parallels between recent counterterrorism efforts and the internment of Japanese-Americans. After describing the reparations made by the United States government to its Japanese-Americans, she writes, “However, to many Japanese-Americans, the scars caused by such brutal and unjustified treatment in the name of national security are truly indelible, and the federal government’s recent counterterrorism efforts are painful reminders of such maltreatment.”
Our team of Los Angeles criminal appeals attorneys looks forward to seeing how leaders like Ms. Venkataramanan, her peers, and other scholarship applicants will preserve the values of the Constitution and support human rights in coming years. We firmly believe that the future of America will be built by compassionate individuals and civil rights leaders.
The Spolin Law P.C. Civil Rights and Criminal Law Scholarship aims to encourage students from different fields to apply.
Spolin Law Overturns Second Defective Murder Conviction Within Six-Month SpanPublished on March 19, 2020
Spolin Law achieved justice on another case a few weeks ago when the firm’s attorneys successfully overturned a murder conviction for an innocent client who had been convicted of murder. This was the second overturned murder conviction the firm has achieved within the past six months for different clients. (To see info about previous successful cases, visit the Awards & Media section of the Spolin Law website).
The client had been convicted of first-degree murder (Penal Code 187), attempted murder (Penal Code 664/187) and robbery with a gun enhancement (Penal Code 211) in 2004 and had been in state custody since his arrest in 2002. Since that time, he has attempted to appeal his conviction multiple times and with different attorneys. He hired Spolin Law to handle the most recent (and successful) petition several months ago. The firm’s appeals attorneys who handled his case included former prosecutor Aaron Spolin and former prosecutor Caitlin Dukes. Ms. Dukes conducted the oral argument for Spolin Law based on the firm’s written submission. Attorney Winston McKesson, the client’s longtime personal lawyer, was also present and provided valuable assistance that aided the firm’s written submission and oral argument on the matter.
The client’s murder conviction was defective for a number of reasons. First, the client—who was 15 years old at the time—was not actually present at the scene of the crime. He was convicted due to his partial fingerprint being on the car at the scene of the crime and an eyewitness describing one of the teenage robbers having “an afro.” After the conviction occurred, the eyewitness clarified that she had not actually seen the client at the crime scene. The second fault in the murder conviction resulted from the fact that the client was convicted under the “felony murder” theory that has since been removed from the law books. Specifically, the client was convicted of “murder” because the old law stated that a person could be convicted of murder even if they participated in a felony, and during the course of this felony a person unintentionally died. Under the old law, a person could have been guilty of murder even if they did not want to physically harm anyone and had no idea that a death would occur. The court relied on this second line of argument to strike the murder conviction.
Superior Court Judge James Otto, in overturning the murder conviction, determined that the client was not a “major participant who acted with reckless indifference to human life.” This determination was the primary point of argument for the lawyers on the case. (Please note that prior successful outcomes do not guarantee a similar result on a future case).
The above photo was taken at the Spolin Law office where some of the team members celebrated the client’s release and gave him a $300 Men’s Warehouse gift certificate (a firm tradition) to help his professional advancement. The client was present with his wife, who had never lost faith in him throughout the seventeen years, five months, and two days of his jail and prison time. She—and the client—had lost multiple other appeals, but they never gave up. In the end, the client won his freedom and can now start his life anew. He already has a job giving lectures and presentations about wrongful convictions and how to live a crime-free life.
California Appeals: How Long Does an Appeal Take?Published on February 19, 2020
If you are interested in appealing your criminal conviction, it is important to understand the timeline of the process. An appeal can take anywhere from a few months to years depending on the unique factors involved. But, in every case and appeal needs to be filed quickly. However, the decision will not be immediate.
You should talk with a Los Angeles appeals lawyer at Spolin Law P.C. regarding the California appeals timeline. This can give you realistic expectations of what to expect.
Appeal Filing Deadline
The first step in a criminal appeal is determining if you are eligible. Immediately after a conviction sentencing, you should speak to an attorney about an appeal.
Your lawyer will carefully review your case for legal errors. If there is evidence that a mistake of law was made during your trial or sentencing, then you have a valid reason to file an appeal.
Next, you must determine if you want to appeal.
If so, you need to file a Notice to Appeal in the superior court. For felonies, you have 60 days to file a notice of appeal in a criminal case from the date the judgment was entered. For misdemeanors, this deadline is only 30 days.
There are other types of post-conviction relief that can be filed after the 60-day or 30-day window, including a California Writ of Habeas Corpus and an Application for Commutation of Sentence. However, traditional or “direct appeals” must be filed within this deadline.
Can You File an Appeal Late?
There are very few reasons why a California court will give you more time to file an appeal. There are possible extensions under the 2018 California Rules of Court, which allows for more time following public emergencies.
You might have grounds for an extension if your trial attorney failed to perform a duty related to a possible appeal. A common example is if your attorney neglected to inform you of your right to appeal. Basically, if you were not informed of your right to appeal, and did not learn of the right until after the filing deadline, call a Los Angeles appeals lawyer right away.
Another possible failure is not filing a timely notice of appeal after you asked your attorney to do so. In this situation, contact Spolin Law P.C. right away to get new representation.
You may also consider an extension for constructive filing. This occurs when you make a good faith attempt to file your notice of appeal, but it is not received in time. For instance, you may represent yourself initially and file in the wrong court. Or, you may ask your jail or prison officials to mail your notice of appeal, and it was mailed or arrived late.
You May Need a Certificate of Probable Cause
If you entered a guilty or nolo contendere plea, admitted to a probation violation, or convicted after an unlawful search and seizure, then you must also file a certificate of probable cause. This states that the trial was unlawful in some way. This is a written statement that you or your attorney provide under oath.
You must deliver the statement to the trial court, which issues the certificate. The trial court has 20 days to deny or approve your request for a certificate of probable cause.
What Happens After Filing a Notice to Appeal
Once you file the Notice to Appeal, the other parties must be notified. The superior court clerk will send a notification of the filing to each parties’ attorney, any unrepresented defendant, the reviewing court clerk, and to each court reporter.
Within 10 days of filing the Notice of Appeal, you must file a Notice of Designating Record on Appeal.
The court reporter is notified because they must prepare the transcript. If there was not a court reporter, the court creates a transcript from the electronic records of the proceedings. Additionally, you may obtain a clerk’s transcript. This encompasses all of the materials collected and placed in the case file during the proceeding.
Filing Your Opening Brief
After the initial appeal paperwork is filed and the trial court record is compiled, you must submit an opening brief. This brief is prepared by your appeals lawyer and can be lengthy.
The brief provides a summary of the trial, asks for a certain outcome, and provides a supporting argument.
For cases in the Court of Appeal, your opening brief must be filed within 40 days after the record is filed. The respondent’s brief must be filed within 30 days of your opening brief. Then, you have 20 days to file a reply brief to the respondent’s brief.
Oral Arguments for the Appeal
After the briefs are filed, the next step is oral arguments. The court will notify you of the hearing date. This may be weeks after the briefs are filed. It depends on the court’s schedule.
Oral arguments allow your lawyer to argue your grounds for an appeal to the judge in person. Depending on the court in which your appeal takes place, your attorney may have up to 30 minutes to make your case. During this time, your attorney may also answer questions from the appellate court judge.
Have Questions About an Appeal in CA? Contact Spolin Law P.C.
Interested in appealing your criminal case? Contact Spolin Law P.C. right away. Aaron Spolin was previously a prosecutor and an award-winning criminal defense and appeals attorney.
Criminal Appeals: Can I Appeal a Juvenile Verdict?Published on February 6, 2020
California has an alternative criminal justice system for minors. While the proceedings still take place in court, they are not the same as in a criminal trial.
Juveniles charged with crimes must go through several hearings. The last of these hearings is called a disposition hearing. That is when the judge makes the final decision about a juvenile’s fate. It’s a lot like the sentencing phase of a criminal trial.
Similar adults, a juvenile can appeal this final decision.
When Should Juveniles Appeal?
Since the juvenile justice system’s goal is rehabilitation rather than punishment, juvenile offenders do not have the same incentives to appeal.
However, there are scenarios when a judge’s disposition should be reversed. If the young offender is innocent, if their rights were violated, or if the court order is unacceptable, a criminal appeals lawyer can and should appeal the judge’s decision.
The Juvenile Appeals Process
Before filing a formal appeal in a juvenile case, it’s necessary to outline the different stages of the juvenile criminal justice process. At each stage, there are opportunities to contest. And in some cases, ask for a new hearing on certain issues.
The California juvenile justice process involves the following:
When a minor is arrested, their fate is initially decided by a probation officer. Depending on the crimes’ severity, a juvenile may simply be released on probation. The officer may also order the youth to be detained and recommend that the District Attorney (DA) file formal charges.
When the minor his detained, or when the DA files criminal charges, a hearing will determine whether detention should continue, or if the juvenile should be detained until the next hearing.
At this stage, a Los Angeles juvenile defense lawyer can contest the the DA’s petition and present evidence. If they are unsatisfied with the result, they can request a new hearing.
In some cases, the DA may request that the juvenile be tried as an adult. For very serious crimes, there is no need for a fitness hearing because adult charges are mandatory.
During this hearing, the DA will present evidence as to why the minor should be treated as an adult. Of course, the defense can argue why the case should stay in the juvenile system. This is an extremely important stage of the process because appealing this decision is very difficult.
If the case stays within the juvenile system, the next stage is the jurisdiction hearing. Like in a criminal trial, this hearing’s purpose is to determine what actually happened. Both sides are allowed to present evidence and cross-examine witnesses. However, the facts will not be decided by a jury. If the judge determines that the available evidence points to the juvenile’s guilt, the case will move to the next stage.
During this part of the process, the focus is not only on how to punish a juvenile but also on how to treat or rehabilitate them. Another important difference is that a judge can decide to “set aside” or cancel the decision about jurisdiction. In other words, the verdict can be canceled if their legal team is successful at this stage. If not, the judge will determine the conditions of detention and probation.
How Can I Appeal My Child’s Verdict?
There are three ways to appeal a juvenile case. First, and while it’s not a formal appeal, your lawyer should try to get a new hearing if the judge rules against your child at the detention phase.
Second, if the judge rules that your child should be treated like an adult, you may file a writ with the Court of Appeals. This isn’t a formal appeal either, but it can delay the process and keep the case in the juvenile system.
Third, you can file an official appeal within 60 days of the disposition hearing. As with a criminal case, your appeal must show that a legal mistake hurt your son’s or daughter’s case.
There are many possible arguments to make in favor of an appeal. A lawyer may argue that evidence was improperly included or rejected, or that the authorities violated your child’s rights at any point during the process.
A California Juvenile Lawyer Can Help
When a minor faces criminal charges, their future hangs in the balance. With so much at stake, these cases require quick, thorough, and aggressive action from the defense.
If you or a loved one received a bad result after a juvenile disposition hearing, you must act fast if you want to appeal.