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self-study / Appellate Practice

Appeals in traffic infraction cases

30 dekreon pro   mug

Civic Center Courthouse

Gail Dekreon

Judge, San Francisco County Superior Court

Civil Harassment

The objective of this article and accompanying self-study test is to familiarize readers with traffic infraction appeals. The article will discuss notices of appeal, the timeliness of appeals, stays of sentences, abandoning appeals, preparation of the record on appeal -- with an emphasis on putting together statements on appeal -- and completing and sending the record to the appellate division of the superior court.


Appeals from infraction cases are governed by the California Rules of Court. Rules 8.800, et seq. There are pro per-friendly Judicial Council forms available for all of the stages of an infraction appeal process, including a trial court's certification of a statement on appeal:

Judgments following trials are appealable by defendants, as are orders made after judgment affecting a defendant's substantial rights. Penal Code Section 1466(b). (Because traffic infraction courts are often not staffed by prosecutors, this article omits notices of appeal filed by the People and most deadlines and notices pertaining to the People.)

A judgment following trial is the most common one appealed by a defendant. Trials by written declaration are conducted at a defendant's request. Vehicle Code Section 40902. But, if a defendant is dissatisfied with a decision of the court in such a trial, the defendant has the right to a trial de novo if requested within 20 days of the notice finding him or her guilty. VC Section 40902(d); Rule 4.210(b)(7). Hence, a defendant cannot appeal the judgment in a trial by written declaration, and can only appeal the judgment following a trial de novo. People v. Kennedy, 168 Cal. App. 4th 1233 (2008).

Notice of Appeal

To appeal from a judgment in an infraction case, the defendant must file a notice of appeal in the trial court that issued the judgment, and the notice must specify the judgment or order or part of it being appealed. Rule 8.901(a). "The notice of appeal must be liberally construed in favor of its sufficiency." Rule 8.901(a)(3).

When the notice of appeal is filed, the trial court clerk must promptly mail a notification of the filing to the attorney of record for each party, and "[t]he clerk must also send or deliver this notification to the appellate division clerk." Rule 8.901(b)(1). The notification must show the date it was sent or delivered, the number and title of the case and the date the notice of appeal was filed. Rule 8.901(b)(2). The notification to the appellate court clerk must include a copy of the notice of appeal. Rule 8.901(b)(3). Nonetheless, failure to comply with any provision of this subdivision does not affect the validity of the notice of appeal. Rule 8.901(b)(6).

Time to Appeal

A notice of appeal must be filed within 30 days after the rendition of the judgment. Rule 8.902(a). A notice of appeal filed before the judgment is rendered is premature, but the appellate division may treat the notice as filed immediately after the judgment is finally rendered. Rule 8.902(c).

A late notice of appeal must be marked by the clerk "Received [date] but not filed" and the clerk must notify the party that the notice was not filed because it was late. Rule 8.902(d). If a notice received by mail from a custodial institution is late, but the envelope shows that the notice was mailed or delivered to the custodial officials on time, then the notice is deemed timely. Rule 8.817(b)(5). The appellate division cannot extend the time to file a notice of appeal. Rule 8.810(c).

Staying the Sentence and Abandoning the Appeal

The trial court has jurisdiction to hear a motion to stay the sentence pending the appeal, and pending appeal, the defendant may apply to the appellate division for a stay of execution after a judgment of conviction. Rule 8.903(a). The appellate division must notify the trial court of any stay that it grants. Rule 8.903(d).

The appellant may abandon the appeal at any time by filing an "abandonment of appeal" signed by the appellant. (Rule 8.904.) It must be filed in the appellate division. Rule 8.904(b)(1). If the record has not been filed in the appellate division, the filing of an abandonment effects a dismissal of the appeal and restores the trial court's jurisdiction. Rule 8.904(b)(2). But, if the record has already been filed, the appellate division has discretion whether to dismiss the appeal. Rule 8.904(b)(3).

Record on Appeal

The record on appeal includes copies of the written documents from the trial court proceedings, which is contained in the clerk's transcript on appeal. Rule 8.910(a)(1)(A). Although less common, a court may also send to the appellate division its trial court file in lieu of the clerk's transcript. Rule 8.910(a)(1)(B).

The record on appeal may include a record of the oral trial proceedings, if the appellant wants to raise any issue that requires consideration of the oral proceedings, and she or he indicates an intention to proceed with an oral record. Rule 8.910(a)(2). If the appellant wants a record of the oral proceedings she or he must elect: A statement on appeal pursuant to Rule 8.916; an official electronic recording of the proceedings under Rule 8.917(c); or a reporter's transcript under Rule 8.918. Rule 8.910(a)(2).

Exhibits (1) admitted in evidence, (2) refused or (3) lodged are deemed part of the record on appeal. Rule 8.921. However, the exhibits are not transmitted to the appellate division for its consideration unless the appellant requests them within 10 days of the filing of the respondents brief, or the appellate division requests them. Rule 8.921(b), (c).

Statement on Appeal

A statement on appeal is the most commonly used form of the record of the oral proceedings of the trial court. The statement is a summary of the trial court proceedings that is approved by the trial court. Rule 8.916(a). The appellant must file an election of format of record at the same time as the filing of the notice of appeal. Rule 8.915(b). If the appellant chose to proceed with a statement on appeal, the appellant must file in the trial court a proposed statement within 20 days after filing the notice of appeal. Rule 8.916(b)(1).

If the appellant does not file the proposed statement within 20 days, the trial court clerk must promptly notify the appellant in writing that the proposed statement must be filed within 15 days after the notice is sent, and that failure to comply will result in the appeal being dismissed. Rules 8.916(b)(3), 8.924.

Within 10 days after the appellant files a proposed statement, the respondent (People) may file proposed amendments. Rule 8.916(d)(1). Within 10 days after the respondent files a response, or the time to file a response expires, a party may request a hearing for the trial court to review and correct the proposed statement. Rule 8.916(d)(2). No hearing will be held unless ordered by the trial court judge. Rule 8.916(d)(2). A judge will not ordinarily order a hearing unless there is a factual dispute about a material aspect of the trial court proceedings. Rule 8.916(d)(2). If a hearing date is ordered, the court must promptly set the hearing date and provide the parties with at least five days written notice of the hearing date. Rule 8.916(d)(4).

Within 10 days after time to request a hearing as expired, the trial court judge must review the proposed statement and the proposed amendments and take one of the following actions listed in Rule 8.916(d)(3):

"A. If the proposed statement does not contain material required under Rule 8.916(c), the trial court judge may order the appellant to prepare a new proposed statement. The order must identify the additional material that must be included in the statement to comply with Rule 8.916(c) and the date by which the new proposed statement must be served and filed. If the appellant does not serve and file a new proposed statement as directed, Rule 8.924 applies.

"B. If the trial court judge does not issue an order to prepare a new proposed statement, the trial court judge must either:

"1. Make any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the evidence and the testimony of each witness that is relevant to the points which the appellant states under Rule 8.916(c)(1) are being raised on appeal; or

"2. Identify the necessary corrections and modifications and order the appellant to prepare a statement incorporating these corrections and modifications."

The trial court clerk must send copies of the corrected or modified statement to the parties for their review and response. Rule 8.916(e)(1). Parties must serve modifications or objections within 10 days after statement sent to them. Rule 8.916(e)(2).

If no corrections are made by the trial judge, the judge must promptly certify the statement. Rule 8.916(f). After trial judge makes any corrections/modifications, within 10 days after time for parties to file objections has expired, the trial judge must review any newly filed proposed objections/corrections, make corrections, if any, and certify the statement. Rule 8.916(e)(3), (f). The trial court may grant an extension of not more than 15 days to do any act required under Rules 8.916. Rule 8.916(g).

Completing and Sending the Record

"If the appellant elected ... to proceed without a record of the oral proceedings in the trial court, the record is complete when the clerk's transcript is certified as correct or, if the original trial court file will be used instead of the clerk's transcript, when that original file is ready for transmission." Rule 8.922(a)(1) (emphasis added).

"If the appellant elected ... to proceed with a record of the oral proceedings in the trial court, the record is complete when the clerk's transcript is certified as correct or the original file is ready for transmission" and the statement on appeal has been certified by the trial judge or a reporter's transcript or official recording of the proceedings is complete. Rule 8.922(a)(2) (emphasis added).

"When the record is complete, the clerk must promptly send: [¶] (1) The original record to the appellate division; [¶] (2) One copy of the clerk's transcript or index to the original court file and one copy of any record of the oral proceedings to each appellant who is represented by separate counsel or is self-represented; [and] (3) If the defendant is the appellant, one copy of the clerk's transcript or index to the original court file and one copy of any record of the oral proceedings to the prosecuting attorney unless the prosecuting attorney has notified the court ... that he or she does not want to receive the record." Rule 8.922(b).


Ben Armistead

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