Tag Archives: Appealability

Appellate Principles, Jurisdiction

Case: 000229

Posted on by Gary McCurdy

Error and/or relief

Petitioner seeks permission to file a belated notice of appeal under the doctrine of constructive filing. The People have voiced no opposition. Granted.

First Holding:

Petitioner is granted leave to file a notice of appeal on or before 60 days from the date of this order. The clerk of the superior court is to treat it as timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court if the clerk of that court receives said request on or before 60 days of the date of this order.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Second Holding:

[GARY NOTE: the second, third, fourth, fifth, and sixth holdings and their authorities are provided by GARY and did not appear in the opinion, but are important enough to mention in the context of the filing of a notice of appeal. The summary for Case 000085 contains a more thorough discussion of the Benoit rule regarding what would otherwise be untimely filings of the notice of appeal.]

Where a defendant is incarcerated and has requested his attorney to file a notice of appeal within the time to file a notice, the court may deem the otherwise late notice of appeal to have been constructively filed timely. The Attorney General’s concession on behalf of the People is deemed to constitute an agreement that the requested relief ought to be granted without further proceedings

Authority:

In re Benoit (1973) 10 Cal.3d 72, 81–82

People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7

Third Holding:

In felony cases, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66 [which deals with when catastrophes happen], no court may extend the time to file a notice of appeal.

Authority:

Rules of Court, rule 8.308

Fourth Holding:

In misdemeanor cases, the notice of appeal under this article must be filed within 30 days after the rendition of the judgment or the making of the order being appealed.

Authority:

Rules of Court, rule 8.393

Fifth Holding:

As used in rule 8.304(a)(1) regarding the filing of a notice of appeal in the superior court in a felony case, “felony case” means any criminal action in which a felony is charged, regardless of the outcome. A felony is “charged” when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a. A felony case includes an action in which the defendant is charged with: (A) A felony and a misdemeanor or infraction, but is convicted of only the misdemeanor or infraction; (B) A felony, but is convicted of only a lesser offense; or (C) An offense filed as a felony but punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under Penal Code section 17(b).

Authority:

Rules of Court, rule 8.304(a)(2)

Sixth Holding:

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal.

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094 [An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.]

Duty of the court, Probation Parole PRCS, Sentencing

Case: 000203

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying his expungement request under Penal Code section 1203.4 and in failing to consider his request to reduce the offense to a misdemeanor under Penal Code section 17(b). Because the court did not address his request under section 17(b), on remand it must do so.

First Holding:

An order denying relief under section 1203.4 is appealable.

Authority:

People v. Chavez (2016) 5 Cal.App.5th 110, 114

Second Holding:

Section 1203.4 provides in pertinent part that a defendant who has fulfilled the conditions of probation for the entire period of probation is entitled as a matter of right to have the plea or verdict changed to not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed. If the petitioner meets the criteria for relief under section 1203.4, the trial court is required to grant the requested relief.

Authority:

PEN 1203.4

People v. Hawley (1991) 228 Cal.App.3d 247, 249-250

People v. Guillen (2013) 218 Cal.App.4th 975, 991

People v. Lewis (2006) 146 Cal.App.4th 294, 297-298

Third Holding:

As of 2023, section 1203.4 provides that a petition for relief under this section shall not be denied due to an unfulfilled order of restitution, and an unfulfilled order of restitution shall not be grounds for finding that a defendant did not fulfill the condition of probation for the entire period of probation.

Authority:

PEN 1203.4(c)(3)(A) & (B)

Fourth Holding:

When a crime is punishable as either a felony or a misdemeanor it is commonly referred to as a “wobbler,” and the trial court may reduce the offense to a misdemeanor at the time of granting probation, or on application of the defendant or probation officer thereafter. The court has broad discretion in deciding whether to reduce a wobbler to a misdemeanor. In exercising its discretion, the court considers several factors, including “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.

Authority:

PEN 17(b)(3)

People v. Tran (2015) 242 Cal.App.4th 877,

People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,

People v. Park (2013) 56 Cal.4th 782, 790-791

Fifth Holding:

Grand theft by embezzlement of property valued at more than $950, the offense for which the defendant was convicted, is a wobbler. The trial court should have addressed the defendant’s request to reduce his felony conviction to a misdemeanor.

Authority:

People v. Selivanov (2016) 5 Cal.App.5th 726, 75

Appellate Principles, Plea bargains, Sentencing

Case: 000142

Posted on by Gary McCurdy

Error and/or relief

Defendant contends the trial court could not impose a more severe punishment than was contemplated in the plea agreement without first giving him an advisement of such a possibility prior to taking his plea, or without an opportunity to withdraw his plea. Finding merit in the contention, we will reverse the judgment and remand the matter to the trial court for further proceedings.

First Holding:

The plea bargain did not contemplate that a failure to return for sentencing would result in a higher sentence than specified in the plea bargain. At the conclusion of taking the plea, the court advised the defendant that he would be released from custody on a Cruz waiver, and if he failed to appear, the court would impose a higher term upon his apprehension. The defendant agreed to the waiver. He failed to appear, and on his apprehension he was sentenced to the upper term rather than the agreed-on middle term. This was error.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1249

Second Holding:

When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.

Authority:

PEN 1192.5

Third Holding:

A defendant may expressly waive the right to withdraw the plea. But any such waiver would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5

Fourth Holding:

A defendant who fails to appear for sentencing does not breach the terms of the plea agreement but instead commits the separate offense of failure to appear, and thus a defendant who fails to appear does not lose the protections of section 1192.5. A plea agreement may validly provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement. When the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.

Authority:

People v. Masloski (2001) 25 Cal.4th 1212, 1219, 1222-1224

Fifth Holding:

Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. There can be no waiver of a constitutional right absent an intentional relinquishment or abandonment of a known right or privilege. No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights. Thus, when the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.

Authority:

People v. Silva (2016) 247 Cal.App.4th 578, 589

People v. Walker (1991) 54 Cal.3d 1013, 1024-1025

People v. Cruz (2013) 219 Cal.App.4th 61, 65

Sixth Holding:

A certificate of probable cause is not required if the issue on appeal arose after the entry of the plea and does not affect the validity of the plea. Defendant did not agree, as part of the plea agreement, to the six-year term. That term was imposed after his plea. Under these circumstances, a certificate of probable cause is not required.

Authority:

People v. Vargas (2007) 148 Cal.App.4th 644, 651

Appellate Principles, Jurisdiction

Case 000085

Posted on by Gary McCurdy

Error and/or relief

This habeas petition seeks a belated appeal from a judgment rendered in the superior court. Petitioner demonstrates to this court’s satisfaction that his forthcoming notice of appeal should be deemed timely filed under the constructive filing doctrine.

First Holding:

In response to this court’s request to file an informal response, the Attorney General does not oppose petitioner’s requested relief. Pursuant to the Attorney General’s response, this court may grant relief without further proceedings.

Authority:

People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7

Second Holding:

Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Third Holding:

[Gary note: The “Benoit” process is fairly routine, and the opinion does not discuss it. Except for roughly a 10-year period from 1961-1971 (when the Rules of Court set up a process for a petition for relief from default), there is no such thing in criminal law as a valid “late notice of appeal.” If the notice of appeal is not filed by the deadline, the court has no jurisdiction to proceed with the appeal.

[In Benoit, however, the Supreme Court recognized the difficulties of getting documents filed when the defendant is in custody. It confirmed or adopted the concept that if (a) the defendant is in custody the entire period of time for the filing of a notice of appeal, and (b) during the filing period the defendant takes steps to timely file the notice of appeal or to get someone to file it on his behalf (such as his or her attorney), the court will deem the notice of appeal constructively timely filed. Once it’s deemed to have been filed (albeit constructively) within the filing period, then it is not late, right?

[But both conditions are critical: the defendant must have been in custody the entire period AND the defendant must have taken reasonable efforts before the expiration of the deadline for filing.

[There is also the “prison delivery” rule, which treats the notice of appeal has having been filed timely if–prior to the expiration of the filing period–the inmate delivers the notice of appeal to the custodial official. I have listed the additional authorities below, though they were not part of the unpublished opinion. If you are faced with a similar problem, I suggest you read Benoit, Jordan, and Silverbrand, because they go into depth on the history and development of constructive filing and the prison delivery rule.]

Authority:

In re Benoit (1973) 10 Cal.3d 72 [incarcerated defendant timely requests the attorney to file the notice of appeal but the attorney does not]

In re Jordan (1992) 4 Cal.4th 116 [articulately the “prison delivery rule,” something that Benoit also discussed]

Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106 [extending the prison delivery rule to incarcerated defendants needing to appeal in civil cases]

Houston v. Lack (1988) 487 U.S. 266, 271 [holding that a self-represented prisoner’s appeal from the denial of a petition for writ of habeas corpus—a civil proceeding—was timely filed when delivered by the petitioner to prison authorities within the applicable 30-day period]

Rules of Court, rule 8.25(b)(5) [If the clerk receives a document by mail from an inmate or a patient in a custodial institution after the period for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document, the document is deemed timely. The clerk must retain in the case file the envelope in which the document was received.]

Fourth Holding:

[GARY NOTE: In felony cases, the notice must be filed within 60 days.]

Authority:

Rules of Court, rule 8.308

Fifth Holding:

[GARY NOTE: In misdemeanor appeals, the notice must be filed within 30 days.]

Authority:

Rules of Court, rule 8.393

Sixth Holding:

[GARY NOTE: An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. I’ve listed authority below.]

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094 [An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.]

Jurisdiction

Case 000084

Posted on by Gary McCurdy

Error and/or relief

The trial court did not have jurisdiction to amend earlier (erroneous) pronouncements on credit for time served, and the appellate court left in place the uncorrected credit for time served even though it gave him more conduct credit than he was entitled to. The appellate court treated the defendant’s appeal as a petition for writ of habeas corpus, because there was no right to appeal from an order that the trial court had no jurisdiction to make. The California Department of Corrections and Rehabilitation clerk’s letter saying there was an error in the award of credit for time served does not constitute a request by CDCR to resentence the defendant under section 1172.1. As the judgment was already final, the trial court had no jurisdiction to change the judgment, even though erroneous. The superior court was directed to amend the abstract of judgment to reflect that the prior sentence as reflected in the original abstract of judgment is reinstated including the awarding of the custody credits.

First Holding:

The court may treat an appeal as a petition for writ of habeas corpus.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783

Second Holding:

Unlike a letter from the California Department of Correction and Rehabilitation Secretary or their authorized representative expressly requesting recall and resentencing, a letter from a CDCR analyst recommending the court to review its file does not confer jurisdiction under section 1172.1 to vacate or modify a sentence notwithstanding the long-standing practice of treating such letters as a jurisdictional basis.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783

Third Holding:

Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. Once the case is final, the court can modify the sentence only if the court has jurisdiction under section 1172.1 or another authorizing statute, or by the filing of a petition for a writ of habeas corpus, or to correct a clerical error, or to modify an unauthorized sentence when the error is apparent from the record

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 990

People v. Karaman (1992) 4 Cal.4th 335, 344

People v. Singleton (2025) 113 Cal.App.5th 783, 788, 791

Fourth Holding:

The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases. Courts must respect the limits on review imposed by the Legislature although the People may thereby suffer a wrong without a remedy. The fact that the act of the trial court was without authority and thus was an act in excess of the trial court’s jurisdiction in itself cannot enlarge the right of appeal by the People.

Authority:

PEN 1238

People v. Superior Court (Mitchell) (2024) 17 Cal.5th 228, 244

People v. Godfrey (1978) 81 Cal.App.3d 896, 901

People v. Williams (2005) 35 Cal.4th 817, 823

Appellate Principles, Jurisdiction, Sentencing

Case 000077

Posted on by Gary McCurdy

Error and/or relief

[Gary note: this is an unusual case because the defendant was allowed to appeal from a denial of his request to be resentenced under section 1172.1, a statute that specifically states “A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.” But there was an unusual scenario in the trial court that turned it into an appealable order.]

The appellate court affirmed the denial of the request for resentencing. The defendant appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.1. For the reasons discussed in the opinion, the appellate court found that the trial court’s order was appealable in this instance. However, it concluded that the trial court did not abuse its discretion in declining to recall and resentence the defendant and affirm the order denying the defendants petition.

First Holding:

The steps taken by the court in this instance, mirroring those it would take had the petition been submitted by an entity with the right to submit a petition for recall (appointment of counsel, holding of a contested hearing, and the merits-based comments denying the request), affected the defendant’s substantial rights, and in this instance, the order is appealable.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375 [noting that even if a defendant does not have the right to petition for relief, he does have the right to invite the court to exercise its power to do so and may raise a trial court’s failure to do so on appeal]

Second Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Third Holding:

Ordinarily, the defendant has no right to appeal from either inaction by the court on or its denial of a defendant’s invitation to recall the sentence under section 1172.1.

Authority:

People v. Hodge (2024) 107 Cal.App.5th 985

People v. Faustinos (2025) 109 Cal.App.5th 687

People v. Raoy (2025) 110 Cal.App.5th 991

People v. Brinson (2025) 112 Cal.App.5th 1040

Fourth Holding:

While a defendant may invite the court to recall the sentence under PC 1170.1, the defendant has no right to petition for recall under section 1170.1, and the court is not required to respond to such an invitation or to consider the request at all.

Authority:

PEN 1172.1(c)

People v. Hodge (2024) 107 Cal.App.5th 985

Fifth Holding:

An appellate court has an independent obligation to assure itself of its own jurisdiction.

Authority:

Doe v. Regents of University of California (2022) 80 Cal.App.5th 282, 291

Appellate Principles

Case 000019

Posted on by Gary McCurdy

Error and/or relief

GARY Note: There is not much discussion in this case. Benoit relief was granted on a petition for writ of habeas corpus seeking a finding that the notice of appeal was deemed constructively filed timely. That process is potentially available to a defendant whose notice of appeal was NOT filed with the 60 days (for a felony, 30 days for a misdemeanor), if certain conditions exist. The conditions are:(a) the defendant has been incarcerated during the entire period that a notice of appeal may be filed; (b) during that period the defendant requested that the attorney file one (or the attorney has otherwise conveyed to the defendant that the attorney will file the notice of appeal); and (c) the attorney failed to timely file the notice of appeal. The defendant may file a petition for writ of habeas corpus in the appellate court and ask that the court deem the notice of appeal to have been constructively filed timely. Although not discussed in this case, Benoit relief is generally NOT granted if the defendant was NOT in custody the entire 60 days, OR if the defendant did not ask the attorney within that 60 days to file a notice of appeal. Other than the reference to the Benoit case, the opinion does not contain any authority. I have added the two pertinent rules from the Rules of Court and a few case citations, none of which appears in the opinion, but I think it’s valuable to understand the importance of meeting that jurisdictional requirement.

First Holding:

Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Second Holding:

In felony cases, the notice of appeal must be filed within 60 days. In appeals from guilty pleas, any required certificate of probable cause must also be filed within 60 days. No court may extend the time to file a notice of appeal.

Authority:

Rules of Court rule 8.308

Third Holding:

In misdemeanor appeals, the notice must be filed within 30 days.

Authority:

Rules of Court rule 8.393

Fourth Holding:

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion. [Gary note: Under Benoit, for an incarcerated person who, within that 60-day period, attempts to get the notice of appeal filed, a court that grants relief technically deems that the notice of appeal was constructively filed timely. Under that legal sense, it is not considered a late notice of appeal. In effect, the court is treating the timely attempts by the incarcerated defendant as the “functional equivalent”–MY description, NOT a court’s description–of filing a notice of appeal.]

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094

Discretion, Jurisdiction, Sentencing

Case 000009

Posted on by Gary McCurdy

Error and/or relief

The defendant invited the trial court to recall his sentence under Penal Code section 1170.1. The court appointed counsel and set a hearing date, but concluded at hearing (with the defendant not being present) that no one-year priors were ever alleged [possibly conflating the request with a motion for resentencing under section 1172.5, which does pertain to resentencing on cases that had certain now-invalid prior prison term enhancements but is unrelated to an invitation for recall of a sentence under section 1170.1] and determined that he was not eligible for resentencing under 1172.1. Reversed.

First Holding:

By taking action on a purported motion that defendant did not make, it conferred jurisdiction on the Court of Appeal to rectify the error.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573

Second Holding:

A defendant is not entitled to file a petition seeking relief from the court under section 1170.1. If a defendant requests consideration for relief under this section, the court is not required to respond.

Authority:

PEN 1170.1(c)

People v. Hodge (2024) 107 Cal.App.5th 985

Third Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Fourth Holding:

It is an abuse of discretion when a court applies improper criteria or an incorrect legal standard to decide an issue.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573