(Subd (a) amended effective January 1, 2007.)
(Subd (b) amended effective July 1, 2007; previously amended effective January 1, 2007.)
(Subd (c) amended effective January 1, 2016; previously amended effective January 1, 2007.)
Cal. R. Ct. 8.304
Advisory Committee Comment
Subdivision (a). Penal Code sectionprovides that an appeal from a judgment or appealable order in a "felony case" is taken to the Court of Appeal, and Penal Code section defines "felony case" to mean "a criminal action in which a felony is charged. . . ." Rule 8.304(a)(2) makes it clear that a "felony case" is an action in which a felony is charged regardless of the outcome of the action. Thus the question whether to file a notice of appeal under this rule or under the rules governing appeals to the appellate division of the superior court (rule et seq.) is answered simply by examining the accusatory pleading: if that document charged the defendant with at least one count of felony (as defined in Penal Code, section ), the Court of Appeal has appellate jurisdiction and the appeal must be taken under this rule even if the prosecution did not result in a punishment of imprisonment in a state prison.
It is settled case law that an appeal is taken to the Court of Appeal not only when the defendant is charged with and convicted of a felony, but also when the defendant is charged with both a felony and a misdemeanor (Pen. Code, §) but is convicted of only the misdemeanor (e.g., People v. Brown (1970) 10 Cal.App.3d 169); when the defendant is charged with a felony but is convicted of only a lesser offense (Pen. Code, § ; e.g., People v. Spreckels (1954) 125 Cal.App.2d 507); and when the defendant is charged with 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 (e.g., People v. Douglas (1999) 20 Cal.4th 85; People v. Clark (1971) 17 Cal.App.3d 890).
Trial court unification did not change this rule: after as before unification, "Appeals in felony cases lie to the [C]ourt of [A]ppeal, regardless of whether the appeal is from the superior court, the municipal court, or the action of a magistrate. Cf. Cal. Const. art. VI, §[except in death penalty cases, Courts of Appeal have appellate jurisdiction when superior courts have original jurisdiction 'in causes of a type within the appellate jurisdiction of the [C]ourts of [A]ppeal on June 30, 1995. . . .']." ("Recommendation on Trial Court Unification" (July 1998) 28 Cal. Law Revision Com. Rep. .)
Subdivision (b). Under (b)(1), the defendant is required to file both a notice of appeal and the statement required by Penal Code sectionfor issuance of a certificate of probable cause. Requiring a notice of appeal in all cases simplifies the rule, permits compliance with the signature requirement of rule 8.304(a)(3), ensures that the defendant's intent to appeal will not be misunderstood, and makes the provision consistent with the rule in civil appeals and with current practice as exemplified in the Judicial Council form governing criminal appeals.
Because of the drastic consequences of failure to file the statement required for issuance of a certificate of probable cause in an appeal after a plea of guilty or nolo contendere or after an admission of probation violation, (b)(5) alerts appellants to a relevant rule of case law, i.e., that although such an appeal may be maintained without a certificate of probable cause if the notice of appeal states the appeal is based on the denial of a motion to suppress evidence or on grounds arising after entry of the plea and not affecting its validity (rule 8.304(b)(4) ), no issue challenging the validity of the plea is cognizable on that appeal without a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1104.)