Cal. R. 8.312

As amended through July 24, 2024

Rule 8.312 - Stay of execution and release on appeal

(a) Application

Pending appeal, the defendant may apply to the reviewing court:

(1) For a stay of execution after a judgment of conviction or an order granting probation; or

(2) For bail, to reduce bail, or for release on other conditions. (Subd (a) amended effective January 1, 2007.)

(b) Showing

The application must include a showing that the defendant sought relief in the superior court and that the court unjustifiably denied the application.

(c) Service

The application must be served on the district attorney and on the Attorney General.

(d) Interim relief

Pending its ruling on the application, the reviewing court may grant the relief requested. The reviewing court must notify the superior court under rule 8.489 of any stay that it grants.

(Subd (d) amended effective January 1, 2009; previously amended effective January 1, 2007.)

Cal. R. Ct. 8.312

Rule 8.312 amended effective 1/1/2009; adopted as rule 30.2 effective 1/1/2004; previously amended and renumbered effective 1/1/2007.

Advisory Committee Comment

Subdivision (a). The remedy of an application for bail under (a)(2) is separate from but consistent with the statutory remedy of a petition for habeas corpus under Penal Code section 1490. (In re Brumback (1956) 46 Cal.2d 810, 815, fn. 3.)

An order of the Court of Appeal denying bail or reduction of bail, or for release on other conditions, is final on filing. (See rule 8.366(b)(2)(A).)

Subdivision (d). The first sentence of (d) recognizes the case law holding that a reviewing court may grant bail or reduce bail, or release the defendant on other conditions, pending its ruling on an application for that relief. (See, e.g., In re Fishman (1952) 109 Cal.App.2d 632, 633; In re Keddy (1951) 105 Cal.App.2d 215, 217.) The second sentence of the subdivision requires the reviewing court to notify the superior court under rule 8.489 when it grants either (1) a stay to preserve the status quo pending its ruling on a stay application or (2) the stay requested by that application.