Cal. R. 8.304

As amended through March 15, 2024

Rule 8.304 - Filing the appeal; certificate of probable cause

(a)Notice of appeal

(1) To appeal from a judgment or an appealable order of the superior court in a felony case-other than a judgment imposing a sentence of death-the defendant or the People must file a notice of appeal in that superior court. To appeal after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must also comply with (b).

(2) As used in (1), "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).

(3) If the defendant appeals, the defendant or the defendant's attorney must sign the notice of appeal. If the People appeal, the attorney for the People must sign the notice.

(4) The notice of appeal must be liberally construed. Except as provided in (b), the notice is sufficient if it identifies the particular judgment or order being appealed. The notice need not specify the court to which the appeal is taken; the appeal will be treated as taken to the Court of Appeal for the district in which the superior court is located.

(Subd (a) amended effective January 1, 2007.)

(b)Appeal from a judgment of conviction after plea of guilty or nolo contendere or after admission of probation violation

(1) Appeal requiring a certificate of probable cause

(A) To appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation on grounds that affect the validity of the plea or admission, the defendant must file in that superior court-with the notice of appeal required by (a)-the written statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause.

(B) Within 20 days after the defendant files a written statement under Penal Code section 1237.5, the superior court must sign and file either a certificate of probable cause or an order denying the certificate.

(2) Appeal not requiring a certificate of probable cause

To appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation on grounds that do not affect the validity of the plea or admission, the defendant need not file the written statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. No certificate of probable cause is required for an appeal based on or from:

(A) The denial of a motion to suppress evidence under Penal Code section 1538.5;

(B) The sentence or other matters occurring after the plea or admission that do not affect the validity of the plea or admission; or

(C) An appealable order for which, by law, no certificate of probable cause is required.

(3) Appeal without a certificate of probable cause

If the defendant does not file the written statement required by Penal Code section 1237.5 or the superior court denies a certificate of probable cause, the appeal will be limited to issues that do not require a certificate of probable cause.

(Subd (b) amended effective January 1, 2022; previously amended effective January 1, 2007, and July 1, 2007.)

(c)Notification of the appeal

(1) When a notice of appeal is filed, the superior court clerk must promptly send a notification of the filing to the attorney of record for each party, to any unrepresented defendant, the district appellate project, to the reviewing court clerk, to each court reporter, and to any primary reporter or reporting supervisor. The notification must specify whether the defendant filed a statement under (b)(1)(A) and, if so, whether the superior court filed a certificate or an order denying a certificate under (b)(1)(B).

(2) The notification must show the date it was sent, the number and title of the case, and the dates that the notice of appeal and any certificate or order denying a certificate under (b)(1)(B) were filed. If the information is available, the notification must also include:

(A) The name, address, telephone number, e-mail address, and California State Bar number of each attorney of record in the case;

(B) The name of the party each attorney represented in the superior court; and

(C) The name, address, telephone number and e-mail address of any unrepresented defendant.

(3) The notification to the reviewing court clerk must also include a copy of the notice of appeal, any certificate filed under (b)(1), and the sequential list of reporters made under rule 2.950.

(4) A copy of the notice of appeal is sufficient notification under (1) if the required information is on the copy or is added by the superior court clerk.

(5) The sending of a notification under (1) is a sufficient performance of the clerk's duty despite the discharge, disqualification, suspension, disbarment, or death of the attorney.

(6) Failure to comply with any provision of this subdivision does not affect the validity of the notice of appeal.

(Subd (c) amended effective January 1, 2022; previously amended effective January 1, 15 2007, and January 1, 2016.)

Cal. R. Ct. 8.304

Rule 8.304 amended effective 1/1/2022; amended effective 1/1/2016; repealed and adopted as rule 30 effective 1/1/2004; previously amended and renumbered as rule 8.304 effective 1/1/2007; previously amended effective 7/1/2007.

Advisory Committee Comment

Subdivision (a). Penal Code section 1235(b) provides that an appeal from a judgment or appealable order in a "felony case" is taken to the Court of Appeal, and Penal Code section 691(f) 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 8.800 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 Pen. Code, § 17(a)), 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, § 691(f)) 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, § 1159; 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 17(b) (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, § 11(a) [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: Revision of Codes" (July 1998) 28 Cal. Law Revision Com. Rep. (1998) pp. 455-456.)

Subdivision (b). Subdivision (b)(1) reiterates the requirement stated in Penal Code section 1237.5(a) that to challenge the validity of a plea or the admission of a probation violation on appeal under Penal Code section 1237(a), the defendant must file both a notice of appeal and the written statement required by section 1237.5(a) for the issuance of a certificate of probable cause. (See People v. Mendez (1999) 19 Cal.4th 1084, 1098 [probable cause certificate requirement is to be applied strictly].)

Subdivision (b)(2) identifies exceptions to the certificate-of-probable-cause requirement, including an appeal that challenges the denial of a motion to suppress evidence under Penal Code section 1538.5 (see People v. Stamps (2020) 9 Cal.5th 685, 694) and an appeal that does not challenge the validity of the plea or the admission of a probation violation (see, e.g., id. at pp. 694-698 [appeal based on a postplea change in the law]; People v. Arriaga (2014) 58 Cal.4th 950, 958-960 [appeal from the denial of a motion to vacate a conviction based on inadequate advisement of potential immigration consequences under Penal Code section 1016.5]; and People v. French (2008) 43 Cal.4th 36, 45-46 [appeal that challenges a postplea sentencing issue that was not resolved by, and as a part of, the negotiated disposition]).

Subdivision (b)(2)(C) clarifies that no certificate of probable cause is required for an appeal from an order that, by law, is appealable without a certificate. (See, e.g., Pen. Code, § 1473.7.)

Subdivision (b)(3) makes clear that if a defendant raises on appeal an issue that requires a certificate of probable cause, but the defendant does not file the written statement required by Penal Code section 1237.5 or the superior court denies the certificate, then the appeal is limited to issues, such as those identified in subdivision (b)(2), that do not require a certificate of probable cause. (See Mendez, supra 19 Cal.4th at pp. 1088-1089.)