1235. (a) Either party to a felony case may appeal on questions of
law alone, as prescribed in this title and in rules adopted by the
Judicial Council. The provisions of this title apply only to such
appeals.
(b) An appeal from the judgment or appealable order in a felony
case is to the court of appeal for the district in which the court
from which the appeal is taken is located.
1236. The party appealing is known as the appellant, and the
adverse party as the respondent, but the title of the action is not
changed in consequence of the appeal.
1237. An appeal may be taken by the defendant:
(a) From a final judgment of conviction except as provided in
Section 1237.1 and Section 1237.5. A sentence, an order granting
probation, or the commitment of a defendant for insanity, the
indeterminate commitment of a defendant as a mentally disordered sex
offender, or the commitment of a defendant for controlled substance
addiction shall be deemed to be a final judgment within the meaning
of this section. Upon appeal from a final judgment the court may
review any order denying a motion for a new trial.
(b) From any order made after judgment, affecting the substantial
rights of the party.
1237.1. No appeal shall be taken by the defendant from a judgment
of conviction on the ground of an error in the calculation of
presentence custody credits, unless the defendant first presents the
claim in the trial court at the time of sentencing, or if the error
is not discovered until after sentencing, the defendant first makes a
motion for correction of the record in the trial court.
1237.5. No appeal shall be taken by the defendant from a judgment
of conviction upon a plea of guilty or nolo contendere, or a
revocation of probation following an admission of violation, except
where both of the following are met:
(a) The defendant has filed with the trial court a written
statement, executed under oath or penalty of perjury showing
reasonable constitutional, jurisdictional, or other grounds going to
the legality of the proceedings.
(b) The trial court has executed and filed a certificate of
probable cause for such appeal with the clerk of the court.
1238. (a) An appeal may be taken by the people from any of the
following:
(1) An order setting aside all or any portion of the indictment,
information, or complaint.
(2) An order sustaining a demurrer to all or any portion of the
indictment, accusation, or information.
(3) An order granting a new trial.
(4) An order arresting judgment.
(5) An order made after judgment, affecting the substantial rights
of the people.
(6) An order modifying the verdict or finding by reducing the
degree of the offense or the punishment imposed or modifying the
offense to a lesser offense.
(7) An order dismissing a case prior to trial made upon motion of
the court pursuant to Section 1385 whenever such order is based upon
an order granting the defendant's motion to return or suppress
property or evidence made at a special hearing as provided in this
code.
(8) An order or judgment dismissing or otherwise terminating all
or any portion of the action including such an order or judgment
after a verdict or finding of guilty or an order or judgment entered
before the defendant has been placed in jeopardy or where the
defendant has waived jeopardy.
(9) An order denying the motion of the people to reinstate the
complaint or a portion thereof pursuant to Section 871.5.
(10) The imposition of an unlawful sentence, whether or not the
court suspends the execution of the sentence, except that portion of
a sentence imposing a prison term which is based upon a court's
choice that a term of imprisonment (A) be the upper, middle, or lower
term, unless the term selected is not set forth in an applicable
statute, or (B) be consecutive or concurrent to another term of
imprisonment, unless an applicable statute requires that the term be
consecutive. As used in this paragraph, "unlawful sentence" means the
imposition of a sentence not authorized by law or the imposition of
a sentence based upon an unlawful order of the court which strikes or
otherwise modifies the effect of an enhancement or prior conviction.
(11) An order recusing the district attorney pursuant to Section
1424.
(b) If, pursuant to paragraph (8) of subdivision (a), the people
prosecute an appeal to decision, or any review of such decision, it
shall be binding upon them and they shall be prohibited from refiling
the case which was appealed.
(c) When an appeal is taken pursuant to paragraph (7) of
subdivision (a), the court may review the order granting the
defendant's motion to return or suppress property or evidence made at
a special hearing as provided in this code.
(d) Nothing contained in this section shall be construed to
authorize an appeal from an order granting probation. Instead, the
people may seek appellate review of any grant of probation, whether
or not the court imposes sentence, by means of a petition for a writ
of mandate or prohibition which is filed within 60 days after
probation is granted. The review of any grant of probation shall
include review of any order underlying the grant of probation.
1238.5. Upon appeal by the prosecution pursuant to Section 1238,
where the notice of appeal is filed after the expiration of the time
available to defendant to seek review of an otherwise reviewable
order or ruling and the appeal by the prosecution relates to a matter
decided during the time available to the defendant to seek review of
the otherwise reviewable order or ruling, the time for defendant to
seek such review is reinstated to run from the date the notice of
appeal was filed with proof of service upon defendant or his counsel.
The Judicial Council shall provide by rule for the consolidation
of such petition for review with the prosecution appeal.
1239. (a) Where an appeal lies on behalf of the defendant or the
people, it may be taken by the defendant or his or her counsel, or by
counsel for the people, in the manner provided in rules adopted by
the Judicial Council.
(b) When upon any plea a judgment of death is rendered, an appeal
is automatically taken by the defendant without any action by him or
her or his or her counsel. The defendant's trial counsel, whether
retained by the defendant or court appointed, shall continue to
represent the defendant until completing the additional duties set
forth in paragraph (1) of subdivision (e) of Section 1240.1.
1240. (a) When in a proceeding falling within the provisions of
Section 15421 of the Government Code a person is not represented by a
public defender acting pursuant to Section 27706 of the Government
Code or other counsel and he is unable to afford the services of
counsel, the court shall appoint the State Public Defender to
represent the person except as follows:
(1) The court shall appoint counsel other than the State Public
Defender when the State Public Defender has refused to represent the
person because of conflict of interest or other reason.
(2) The court may, in its discretion, appoint either the State
Public Defender or the attorney who represented the person at his
trial when the person requests the latter to represent him on appeal
and the attorney consents to the appointment. In unusual cases, where
good cause exists, the court may appoint any other attorney.
(3) A court may appoint a county public defender, private
attorney, or nonprofit corporation with which the State Public
Defender has contracted to furnish defense services pursuant to
Government Code Section 15402.
(4) When a judgment of death has been rendered the Supreme Court
may, in its discretion, appoint counsel other than the State Public
Defender or the attorney who represented the person at trial.
(b) If counsel other than the State Public Defender is appointed
pursuant to this section, he may exercise the same authority as the
State Public Defender pursuant to Chapter 2 (commencing with Section
15420) of Part 7 of Division 3 of Title 2 of the Government Code.
1240.1. (a) In any noncapital criminal, juvenile court, or civil
commitment case wherein the defendant would be entitled to the
appointment of counsel on appeal if indigent, it shall be the duty of
the attorney who represented the person at trial to provide counsel
and advice as to whether arguably meritorious grounds exist for
reversal or modification of the judgment on appeal. The attorney
shall admonish the defendant that he or she is not able to provide
advice concerning his or her own competency, and that the State
Public Defender or other counsel should be consulted for advice as to
whether an issue regarding the competency of counsel should be
raised on appeal. The trial court may require trial counsel to
certify that he or she has counseled the defendant as to whether
arguably meritorious grounds for appeal exist at the time a notice of
appeal is filed. Nothing in this section shall be construed to
prevent any person having a right to appeal from doing so.
(b) It shall be the duty of every attorney representing an
indigent defendant in any criminal, juvenile court, or civil
commitment case to execute and file on his or her client's behalf a
timely notice of appeal when the attorney is of the opinion that
arguably meritorious grounds exist for a reversal or modification of
the judgment or orders to be appealed from, and where, in the
attorney's judgment, it is in the defendant's interest to pursue any
relief that may be available to him or her on appeal; or when
directed to do so by a defendant having a right to appeal.
With the notice of appeal the attorney shall file a brief
statement of the points to be raised on appeal and a designation of
any document, paper, pleading, or transcript of oral proceedings
necessary to properly present those points on appeal when the
document, paper, pleading, or transcript of oral proceedings would
not be included in the normal record on appeal according to the
applicable provisions of the California Rules of Court. The executing
of the notice of appeal by the defendant's attorney shall not
constitute an undertaking to represent the defendant on appeal unless
the undertaking is expressly stated in the notice of appeal.
If the defendant was represented by appointed counsel on the trial
level, or if it appears that the defendant will request the
appointment of counsel on appeal by reason of indigency, the trial
attorney shall also assist the defendant in preparing and submitting
a motion for the appointment of counsel and any supporting
declaration or affidavit as to the defendant's financial condition.
These documents shall be filed with the trial court at the time of
filing a notice of appeal, and shall be transmitted by the clerk of
the trial court to the clerk of the appellate court within three
judicial days of their receipt. The appellate court shall act upon
that motion without unnecessary delay. An attorney's failure to file
a motion for the appointment of counsel with the notice of appeal
shall not foreclose the defendant from filing a motion at any time it
becomes known to him or her that the attorney has failed to do so,
or at any time he or she shall become indigent if he or she was not
previously indigent.
(c) The State Public Defender shall, at the request of any
attorney representing a prospective indigent appellant or at the
request of the prospective indigent appellant himself or herself,
provide counsel and advice to the prospective indigent appellant or
attorney as to whether arguably meritorious grounds exist on which
the judgment or order to be appealed from would be reversed or
modified on appeal.
(d) The failure of a trial attorney to perform any duty prescribed
in this section, assign any particular point or error in the notice
of appeal, or designate any particular thing for inclusion in the
record on appeal shall not foreclose any defendant from filing a
notice of appeal on his or her own behalf or from raising any point
or argument on appeal; nor shall it foreclose the defendant or his or
her counsel on appeal from requesting the augmentation or correction
of the record on appeal in the reviewing court.
(e) (1) In order to expedite certification of the entire record on
appeal in all capital cases, the defendant's trial counsel, whether
retained by the defendant or court-appointed, and the prosecutor
shall continue to represent the respective parties. Each counsel's
obligations extend to taking all steps necessary to facilitate the
preparation and timely certification of the record of all trial court
proceedings.
(2) The duties imposed on trial counsel in paragraph (1) shall not
foreclose the defendant's appellate counsel from requesting
additions or corrections to the record on appeal in either the trial
court or the California Supreme Court in a manner provided by rules
of court adopted by the Judicial Council.
1241. In any case in which counsel other than a public defender has
been appointed by the Supreme Court or by a court of appeal to
represent a party to any appeal or proceeding, such counsel shall
receive a reasonable sum for compensation and necessary expenses, the
amount of which shall be determined by the court and paid from any
funds appropriated to the Judicial Council for that purpose. Claim
for the payment of such compensation and expenses shall be made on a
form prescribed by the Judicial Council and presented by counsel to
the clerk of the appointing court. After the court has made its order
fixing the amount to be paid the clerk shall transmit a copy of the
order to the State Controller who shall draw his warrant in payment
thereof and transmit it to the payee.
1242. An appeal taken by the people in no case stays or affects the
operation of a judgment in favor of the defendant, until judgment is
reversed.
1243. An appeal to the Supreme Court or to a court of appeal from a
judgment of conviction stays the execution of the judgment in all
cases where a sentence of death has been imposed, but does not stay
the execution of the judgment or order granting probation in any
other case unless the trial or appellate court shall so order. The
granting or refusal of such an order shall rest in the discretion of
the court, except that a court shall not stay any duty to register as
a sex offender pursuant to Section 290. If the order is made, the
clerk of the court shall issue a certificate stating that the order
has been made.
1244. If the certificate provided for in the preceding section is
filed, the Sheriff must, if the defendant be in his custody, upon
being served with a copy thereof, keep the defendant in his custody
without executing the judgment, and detain him to abide the judgment
on appeal.
1245. If before the granting of the certificate, the execution of
the judgment has commenced, the further execution thereof is
suspended, and upon service of a copy of such certificate the
defendant must be restored, by the officer in whose custody he is, to
his original custody.
1246. The record on appeal shall be made up and filed in such time
and manner as shall be prescribed in rules adopted by the Judicial
Council.
1235. (a) Either party to a felony case may appeal on questions of
law alone, as prescribed in this title and in rules adopted by the
Judicial Council. The provisions of this title apply only to such
appeals.
(b) An appeal from the judgment or appealable order in a felony
case is to the court of appeal for the district in which the court
from which the appeal is taken is located.
1236. The party appealing is known as the appellant, and the
adverse party as the respondent, but the title of the action is not
changed in consequence of the appeal.
1237. An appeal may be taken by the defendant:
(a) From a final judgment of conviction except as provided in
Section 1237.1 and Section 1237.5. A sentence, an order granting
probation, or the commitment of a defendant for insanity, the
indeterminate commitment of a defendant as a mentally disordered sex
offender, or the commitment of a defendant for controlled substance
addiction shall be deemed to be a final judgment within the meaning
of this section. Upon appeal from a final judgment the court may
review any order denying a motion for a new trial.
(b) From any order made after judgment, affecting the substantial
rights of the party.
1237.1. No appeal shall be taken by the defendant from a judgment
of conviction on the ground of an error in the calculation of
presentence custody credits, unless the defendant first presents the
claim in the trial court at the time of sentencing, or if the error
is not discovered until after sentencing, the defendant first makes a
motion for correction of the record in the trial court.
1237.5. No appeal shall be taken by the defendant from a judgment
of conviction upon a plea of guilty or nolo contendere, or a
revocation of probation following an admission of violation, except
where both of the following are met:
(a) The defendant has filed with the trial court a written
statement, executed under oath or penalty of perjury showing
reasonable constitutional, jurisdictional, or other grounds going to
the legality of the proceedings.
(b) The trial court has executed and filed a certificate of
probable cause for such appeal with the clerk of the court.
1238. (a) An appeal may be taken by the people from any of the
following:
(1) An order setting aside all or any portion of the indictment,
information, or complaint.
(2) An order sustaining a demurrer to all or any portion of the
indictment, accusation, or information.
(3) An order granting a new trial.
(4) An order arresting judgment.
(5) An order made after judgment, affecting the substantial rights
of the people.
(6) An order modifying the verdict or finding by reducing the
degree of the offense or the punishment imposed or modifying the
offense to a lesser offense.
(7) An order dismissing a case prior to trial made upon motion of
the court pursuant to Section 1385 whenever such order is based upon
an order granting the defendant's motion to return or suppress
property or evidence made at a special hearing as provided in this
code.
(8) An order or judgment dismissing or otherwise terminating all
or any portion of the action including such an order or judgment
after a verdict or finding of guilty or an order or judgment entered
before the defendant has been placed in jeopardy or where the
defendant has waived jeopardy.
(9) An order denying the motion of the people to reinstate the
complaint or a portion thereof pursuant to Section 871.5.
(10) The imposition of an unlawful sentence, whether or not the
court suspends the execution of the sentence, except that portion of
a sentence imposing a prison term which is based upon a court's
choice that a term of imprisonment (A) be the upper, middle, or lower
term, unless the term selected is not set forth in an applicable
statute, or (B) be consecutive or concurrent to another term of
imprisonment, unless an applicable statute requires that the term be
consecutive. As used in this paragraph, "unlawful sentence" means the
imposition of a sentence not authorized by law or the imposition of
a sentence based upon an unlawful order of the court which strikes or
otherwise modifies the effect of an enhancement or prior conviction.
(11) An order recusing the district attorney pursuant to Section
1424.
(b) If, pursuant to paragraph (8) of subdivision (a), the people
prosecute an appeal to decision, or any review of such decision, it
shall be binding upon them and they shall be prohibited from refiling
the case which was appealed.
(c) When an appeal is taken pursuant to paragraph (7) of
subdivision (a), the court may review the order granting the
defendant's motion to return or suppress property or evidence made at
a special hearing as provided in this code.
(d) Nothing contained in this section shall be construed to
authorize an appeal from an order granting probation. Instead, the
people may seek appellate review of any grant of probation, whether
or not the court imposes sentence, by means of a petition for a writ
of mandate or prohibition which is filed within 60 days after
probation is granted. The review of any grant of probation shall
include review of any order underlying the grant of probation.
1238.5. Upon appeal by the prosecution pursuant to Section 1238,
where the notice of appeal is filed after the expiration of the time
available to defendant to seek review of an otherwise reviewable
order or ruling and the appeal by the prosecution relates to a matter
decided during the time available to the defendant to seek review of
the otherwise reviewable order or ruling, the time for defendant to
seek such review is reinstated to run from the date the notice of
appeal was filed with proof of service upon defendant or his counsel.
The Judicial Council shall provide by rule for the consolidation
of such petition for review with the prosecution appeal.
1239. (a) Where an appeal lies on behalf of the defendant or the
people, it may be taken by the defendant or his or her counsel, or by
counsel for the people, in the manner provided in rules adopted by
the Judicial Council.
(b) When upon any plea a judgment of death is rendered, an appeal
is automatically taken by the defendant without any action by him or
her or his or her counsel. The defendant's trial counsel, whether
retained by the defendant or court appointed, shall continue to
represent the defendant until completing the additional duties set
forth in paragraph (1) of subdivision (e) of Section 1240.1.
1240. (a) When in a proceeding falling within the provisions of
Section 15421 of the Government Code a person is not represented by a
public defender acting pursuant to Section 27706 of the Government
Code or other counsel and he is unable to afford the services of
counsel, the court shall appoint the State Public Defender to
represent the person except as follows:
(1) The court shall appoint counsel other than the State Public
Defender when the State Public Defender has refused to represent the
person because of conflict of interest or other reason.
(2) The court may, in its discretion, appoint either the State
Public Defender or the attorney who represented the person at his
trial when the person requests the latter to represent him on appeal
and the attorney consents to the appointment. In unusual cases, where
good cause exists, the court may appoint any other attorney.
(3) A court may appoint a county public defender, private
attorney, or nonprofit corporation with which the State Public
Defender has contracted to furnish defense services pursuant to
Government Code Section 15402.
(4) When a judgment of death has been rendered the Supreme Court
may, in its discretion, appoint counsel other than the State Public
Defender or the attorney who represented the person at trial.
(b) If counsel other than the State Public Defender is appointed
pursuant to this section, he may exercise the same authority as the
State Public Defender pursuant to Chapter 2 (commencing with Section
15420) of Part 7 of Division 3 of Title 2 of the Government Code.
1240.1. (a) In any noncapital criminal, juvenile court, or civil
commitment case wherein the defendant would be entitled to the
appointment of counsel on appeal if indigent, it shall be the duty of
the attorney who represented the person at trial to provide counsel
and advice as to whether arguably meritorious grounds exist for
reversal or modification of the judgment on appeal. The attorney
shall admonish the defendant that he or she is not able to provide
advice concerning his or her own competency, and that the State
Public Defender or other counsel should be consulted for advice as to
whether an issue regarding the competency of counsel should be
raised on appeal. The trial court may require trial counsel to
certify that he or she has counseled the defendant as to whether
arguably meritorious grounds for appeal exist at the time a notice of
appeal is filed. Nothing in this section shall be construed to
prevent any person having a right to appeal from doing so.
(b) It shall be the duty of every attorney representing an
indigent defendant in any criminal, juvenile court, or civil
commitment case to execute and file on his or her client's behalf a
timely notice of appeal when the attorney is of the opinion that
arguably meritorious grounds exist for a reversal or modification of
the judgment or orders to be appealed from, and where, in the
attorney's judgment, it is in the defendant's interest to pursue any
relief that may be available to him or her on appeal; or when
directed to do so by a defendant having a right to appeal.
With the notice of appeal the attorney shall file a brief
statement of the points to be raised on appeal and a designation of
any document, paper, pleading, or transcript of oral proceedings
necessary to properly present those points on appeal when the
document, paper, pleading, or transcript of oral proceedings would
not be included in the normal record on appeal according to the
applicable provisions of the California Rules of Court. The executing
of the notice of appeal by the defendant's attorney shall not
constitute an undertaking to represent the defendant on appeal unless
the undertaking is expressly stated in the notice of appeal.
If the defendant was represented by appointed counsel on the trial
level, or if it appears that the defendant will request the
appointment of counsel on appeal by reason of indigency, the trial
attorney shall also assist the defendant in preparing and submitting
a motion for the appointment of counsel and any supporting
declaration or affidavit as to the defendant's financial condition.
These documents shall be filed with the trial court at the time of
filing a notice of appeal, and shall be transmitted by the clerk of
the trial court to the clerk of the appellate court within three
judicial days of their receipt. The appellate court shall act upon
that motion without unnecessary delay. An attorney's failure to file
a motion for the appointment of counsel with the notice of appeal
shall not foreclose the defendant from filing a motion at any time it
becomes known to him or her that the attorney has failed to do so,
or at any time he or she shall become indigent if he or she was not
previously indigent.
(c) The State Public Defender shall, at the request of any
attorney representing a prospective indigent appellant or at the
request of the prospective indigent appellant himself or herself,
provide counsel and advice to the prospective indigent appellant or
attorney as to whether arguably meritorious grounds exist on which
the judgment or order to be appealed from would be reversed or
modified on appeal.
(d) The failure of a trial attorney to perform any duty prescribed
in this section, assign any particular point or error in the notice
of appeal, or designate any particular thing for inclusion in the
record on appeal shall not foreclose any defendant from filing a
notice of appeal on his or her own behalf or from raising any point
or argument on appeal; nor shall it foreclose the defendant or his or
her counsel on appeal from requesting the augmentation or correction
of the record on appeal in the reviewing court.
(e) (1) In order to expedite certification of the entire record on
appeal in all capital cases, the defendant's trial counsel, whether
retained by the defendant or court-appointed, and the prosecutor
shall continue to represent the respective parties. Each counsel's
obligations extend to taking all steps necessary to facilitate the
preparation and timely certification of the record of all trial court
proceedings.
(2) The duties imposed on trial counsel in paragraph (1) shall not
foreclose the defendant's appellate counsel from requesting
additions or corrections to the record on appeal in either the trial
court or the California Supreme Court in a manner provided by rules
of court adopted by the Judicial Council.
1241. In any case in which counsel other than a public defender has
been appointed by the Supreme Court or by a court of appeal to
represent a party to any appeal or proceeding, such counsel shall
receive a reasonable sum for compensation and necessary expenses, the
amount of which shall be determined by the court and paid from any
funds appropriated to the Judicial Council for that purpose. Claim
for the payment of such compensation and expenses shall be made on a
form prescribed by the Judicial Council and presented by counsel to
the clerk of the appointing court. After the court has made its order
fixing the amount to be paid the clerk shall transmit a copy of the
order to the State Controller who shall draw his warrant in payment
thereof and transmit it to the payee.
1242. An appeal taken by the people in no case stays or affects the
operation of a judgment in favor of the defendant, until judgment is
reversed.
1243. An appeal to the Supreme Court or to a court of appeal from a
judgment of conviction stays the execution of the judgment in all
cases where a sentence of death has been imposed, but does not stay
the execution of the judgment or order granting probation in any
other case unless the trial or appellate court shall so order. The
granting or refusal of such an order shall rest in the discretion of
the court, except that a court shall not stay any duty to register as
a sex offender pursuant to Section 290. If the order is made, the
clerk of the court shall issue a certificate stating that the order
has been made.
1244. If the certificate provided for in the preceding section is
filed, the Sheriff must, if the defendant be in his custody, upon
being served with a copy thereof, keep the defendant in his custody
without executing the judgment, and detain him to abide the judgment
on appeal.
1245. If before the granting of the certificate, the execution of
the judgment has commenced, the further execution thereof is
suspended, and upon service of a copy of such certificate the
defendant must be restored, by the officer in whose custody he is, to
his original custody.
1246. The record on appeal shall be made up and filed in such time
and manner as shall be prescribed in rules adopted by the Judicial
Council.
1235. (a) Either party to a felony case may appeal on questions of
law alone, as prescribed in this title and in rules adopted by the
Judicial Council. The provisions of this title apply only to such
appeals.
(b) An appeal from the judgment or appealable order in a felony
case is to the court of appeal for the district in which the court
from which the appeal is taken is located.
1236. The party appealing is known as the appellant, and the
adverse party as the respondent, but the title of the action is not
changed in consequence of the appeal.
1237. An appeal may be taken by the defendant:
(a) From a final judgment of conviction except as provided in
Section 1237.1 and Section 1237.5. A sentence, an order granting
probation, or the commitment of a defendant for insanity, the
indeterminate commitment of a defendant as a mentally disordered sex
offender, or the commitment of a defendant for controlled substance
addiction shall be deemed to be a final judgment within the meaning
of this section. Upon appeal from a final judgment the court may
review any order denying a motion for a new trial.
(b) From any order made after judgment, affecting the substantial
rights of the party.
1237.1. No appeal shall be taken by the defendant from a judgment
of conviction on the ground of an error in the calculation of
presentence custody credits, unless the defendant first presents the
claim in the trial court at the time of sentencing, or if the error
is not discovered until after sentencing, the defendant first makes a
motion for correction of the record in the trial court.
1237.5. No appeal shall be taken by the defendant from a judgment
of conviction upon a plea of guilty or nolo contendere, or a
revocation of probation following an admission of violation, except
where both of the following are met:
(a) The defendant has filed with the trial court a written
statement, executed under oath or penalty of perjury showing
reasonable constitutional, jurisdictional, or other grounds going to
the legality of the proceedings.
(b) The trial court has executed and filed a certificate of
probable cause for such appeal with the clerk of the court.
1238. (a) An appeal may be taken by the people from any of the
following:
(1) An order setting aside all or any portion of the indictment,
information, or complaint.
(2) An order sustaining a demurrer to all or any portion of the
indictment, accusation, or information.
(3) An order granting a new trial.
(4) An order arresting judgment.
(5) An order made after judgment, affecting the substantial rights
of the people.
(6) An order modifying the verdict or finding by reducing the
degree of the offense or the punishment imposed or modifying the
offense to a lesser offense.
(7) An order dismissing a case prior to trial made upon motion of
the court pursuant to Section 1385 whenever such order is based upon
an order granting the defendant's motion to return or suppress
property or evidence made at a special hearing as provided in this
code.
(8) An order or judgment dismissing or otherwise terminating all
or any portion of the action including such an order or judgment
after a verdict or finding of guilty or an order or judgment entered
before the defendant has been placed in jeopardy or where the
defendant has waived jeopardy.
(9) An order denying the motion of the people to reinstate the
complaint or a portion thereof pursuant to Section 871.5.
(10) The imposition of an unlawful sentence, whether or not the
court suspends the execution of the sentence, except that portion of
a sentence imposing a prison term which is based upon a court's
choice that a term of imprisonment (A) be the upper, middle, or lower
term, unless the term selected is not set forth in an applicable
statute, or (B) be consecutive or concurrent to another term of
imprisonment, unless an applicable statute requires that the term be
consecutive. As used in this paragraph, "unlawful sentence" means the
imposition of a sentence not authorized by law or the imposition of
a sentence based upon an unlawful order of the court which strikes or
otherwise modifies the effect of an enhancement or prior conviction.
(11) An order recusing the district attorney pursuant to Section
1424.
(b) If, pursuant to paragraph (8) of subdivision (a), the people
prosecute an appeal to decision, or any review of such decision, it
shall be binding upon them and they shall be prohibited from refiling
the case which was appealed.
(c) When an appeal is taken pursuant to paragraph (7) of
subdivision (a), the court may review the order granting the
defendant's motion to return or suppress property or evidence made at
a special hearing as provided in this code.
(d) Nothing contained in this section shall be construed to
authorize an appeal from an order granting probation. Instead, the
people may seek appellate review of any grant of probation, whether
or not the court imposes sentence, by means of a petition for a writ
of mandate or prohibition which is filed within 60 days after
probation is granted. The review of any grant of probation shall
include review of any order underlying the grant of probation.
1238.5. Upon appeal by the prosecution pursuant to Section 1238,
where the notice of appeal is filed after the expiration of the time
available to defendant to seek review of an otherwise reviewable
order or ruling and the appeal by the prosecution relates to a matter
decided during the time available to the defendant to seek review of
the otherwise reviewable order or ruling, the time for defendant to
seek such review is reinstated to run from the date the notice of
appeal was filed with proof of service upon defendant or his counsel.
The Judicial Council shall provide by rule for the consolidation
of such petition for review with the prosecution appeal.
1239. (a) Where an appeal lies on behalf of the defendant or the
people, it may be taken by the defendant or his or her counsel, or by
counsel for the people, in the manner provided in rules adopted by
the Judicial Council.
(b) When upon any plea a judgment of death is rendered, an appeal
is automatically taken by the defendant without any action by him or
her or his or her counsel. The defendant's trial counsel, whether
retained by the defendant or court appointed, shall continue to
represent the defendant until completing the additional duties set
forth in paragraph (1) of subdivision (e) of Section 1240.1.
1240. (a) When in a proceeding falling within the provisions of
Section 15421 of the Government Code a person is not represented by a
public defender acting pursuant to Section 27706 of the Government
Code or other counsel and he is unable to afford the services of
counsel, the court shall appoint the State Public Defender to
represent the person except as follows:
(1) The court shall appoint counsel other than the State Public
Defender when the State Public Defender has refused to represent the
person because of conflict of interest or other reason.
(2) The court may, in its discretion, appoint either the State
Public Defender or the attorney who represented the person at his
trial when the person requests the latter to represent him on appeal
and the attorney consents to the appointment. In unusual cases, where
good cause exists, the court may appoint any other attorney.
(3) A court may appoint a county public defender, private
attorney, or nonprofit corporation with which the State Public
Defender has contracted to furnish defense services pursuant to
Government Code Section 15402.
(4) When a judgment of death has been rendered the Supreme Court
may, in its discretion, appoint counsel other than the State Public
Defender or the attorney who represented the person at trial.
(b) If counsel other than the State Public Defender is appointed
pursuant to this section, he may exercise the same authority as the
State Public Defender pursuant to Chapter 2 (commencing with Section
15420) of Part 7 of Division 3 of Title 2 of the Government Code.
1240.1. (a) In any noncapital criminal, juvenile court, or civil
commitment case wherein the defendant would be entitled to the
appointment of counsel on appeal if indigent, it shall be the duty of
the attorney who represented the person at trial to provide counsel
and advice as to whether arguably meritorious grounds exist for
reversal or modification of the judgment on appeal. The attorney
shall admonish the defendant that he or she is not able to provide
advice concerning his or her own competency, and that the State
Public Defender or other counsel should be consulted for advice as to
whether an issue regarding the competency of counsel should be
raised on appeal. The trial court may require trial counsel to
certify that he or she has counseled the defendant as to whether
arguably meritorious grounds for appeal exist at the time a notice of
appeal is filed. Nothing in this section shall be construed to
prevent any person having a right to appeal from doing so.
(b) It shall be the duty of every attorney representing an
indigent defendant in any criminal, juvenile court, or civil
commitment case to execute and file on his or her client's behalf a
timely notice of appeal when the attorney is of the opinion that
arguably meritorious grounds exist for a reversal or modification of
the judgment or orders to be appealed from, and where, in the
attorney's judgment, it is in the defendant's interest to pursue any
relief that may be available to him or her on appeal; or when
directed to do so by a defendant having a right to appeal.
With the notice of appeal the attorney shall file a brief
statement of the points to be raised on appeal and a designation of
any document, paper, pleading, or transcript of oral proceedings
necessary to properly present those points on appeal when the
document, paper, pleading, or transcript of oral proceedings would
not be included in the normal record on appeal according to the
applicable provisions of the California Rules of Court. The executing
of the notice of appeal by the defendant's attorney shall not
constitute an undertaking to represent the defendant on appeal unless
the undertaking is expressly stated in the notice of appeal.
If the defendant was represented by appointed counsel on the trial
level, or if it appears that the defendant will request the
appointment of counsel on appeal by reason of indigency, the trial
attorney shall also assist the defendant in preparing and submitting
a motion for the appointment of counsel and any supporting
declaration or affidavit as to the defendant's financial condition.
These documents shall be filed with the trial court at the time of
filing a notice of appeal, and shall be transmitted by the clerk of
the trial court to the clerk of the appellate court within three
judicial days of their receipt. The appellate court shall act upon
that motion without unnecessary delay. An attorney's failure to file
a motion for the appointment of counsel with the notice of appeal
shall not foreclose the defendant from filing a motion at any time it
becomes known to him or her that the attorney has failed to do so,
or at any time he or she shall become indigent if he or she was not
previously indigent.
(c) The State Public Defender shall, at the request of any
attorney representing a prospective indigent appellant or at the
request of the prospective indigent appellant himself or herself,
provide counsel and advice to the prospective indigent appellant or
attorney as to whether arguably meritorious grounds exist on which
the judgment or order to be appealed from would be reversed or
modified on appeal.
(d) The failure of a trial attorney to perform any duty prescribed
in this section, assign any particular point or error in the notice
of appeal, or designate any particular thing for inclusion in the
record on appeal shall not foreclose any defendant from filing a
notice of appeal on his or her own behalf or from raising any point
or argument on appeal; nor shall it foreclose the defendant or his or
her counsel on appeal from requesting the augmentation or correction
of the record on appeal in the reviewing court.
(e) (1) In order to expedite certification of the entire record on
appeal in all capital cases, the defendant's trial counsel, whether
retained by the defendant or court-appointed, and the prosecutor
shall continue to represent the respective parties. Each counsel's
obligations extend to taking all steps necessary to facilitate the
preparation and timely certification of the record of all trial court
proceedings.
(2) The duties imposed on trial counsel in paragraph (1) shall not
foreclose the defendant's appellate counsel from requesting
additions or corrections to the record on appeal in either the trial
court or the California Supreme Court in a manner provided by rules
of court adopted by the Judicial Council.
1241. In any case in which counsel other than a public defender has
been appointed by the Supreme Court or by a court of appeal to
represent a party to any appeal or proceeding, such counsel shall
receive a reasonable sum for compensation and necessary expenses, the
amount of which shall be determined by the court and paid from any
funds appropriated to the Judicial Council for that purpose. Claim
for the payment of such compensation and expenses shall be made on a
form prescribed by the Judicial Council and presented by counsel to
the clerk of the appointing court. After the court has made its order
fixing the amount to be paid the clerk shall transmit a copy of the
order to the State Controller who shall draw his warrant in payment
thereof and transmit it to the payee.
1242. An appeal taken by the people in no case stays or affects the
operation of a judgment in favor of the defendant, until judgment is
reversed.
1243. An appeal to the Supreme Court or to a court of appeal from a
judgment of conviction stays the execution of the judgment in all
cases where a sentence of death has been imposed, but does not stay
the execution of the judgment or order granting probation in any
other case unless the trial or appellate court shall so order. The
granting or refusal of such an order shall rest in the discretion of
the court, except that a court shall not stay any duty to register as
a sex offender pursuant to Section 290. If the order is made, the
clerk of the court shall issue a certificate stating that the order
has been made.
1244. If the certificate provided for in the preceding section is
filed, the Sheriff must, if the defendant be in his custody, upon
being served with a copy thereof, keep the defendant in his custody
without executing the judgment, and detain him to abide the judgment
on appeal.
1245. If before the granting of the certificate, the execution of
the judgment has commenced, the further execution thereof is
suspended, and upon service of a copy of such certificate the
defendant must be restored, by the officer in whose custody he is, to
his original custody.
1246. The record on appeal shall be made up and filed in such time
and manner as shall be prescribed in rules adopted by the Judicial
Council.
