How to Overturn a Conviction in California

A person who has been convicted of a crime in California has several options available to help have the conviction overturned. The three most common mechanisms are:

overturn a conviction in California

Motion for New Trial

California law, Penal Code 1179, allows a person who has been convicted of a crime to seek a new trial in front of another jury. Each party must start over as if the original case never happened. Evidence is not recycled from the original trial.

Some of the common reasons a judge might order a new trial are:

  1. The trial was unlawfully held in the defendant's absence;
  2. The jury unlawfully received evidence not presented at trial;
  3. The jury did not deliberate together or engaged in other misconduct;
  4. The verdict was not the unanimous decision of all jurors;
  5. The judge explained the law incorrectly or the district attorney engaged in misconduct;
  6. The decision is contrary to the law or the evidence presented; and
  7. when new evidence is found that couldn't have been located sooner.

The motion is filed in the Superior Court where the case was decided, and the same judge that presided over the trial makes a decision. The district attorney is allowed to submit an opposition. The judge may hold a hearing.


A defendant also has the option of filing an appeal. An appeal does not mean that the person gets a new trial. It means that a higher court reviews the proceedings to determine whether errors occurred that make the conviction unlawful.

Court of Appeals Doesn't Review New Evidence

The Court of Appeals does not review evidence or arguments that weren't presented at the trial. The judges also don't decide factual questions, such as which of two witnesses told the truth. If the evidence supports the verdict, the Court doesn't consider conflicting evidence. The Court looks at whether the appealing party, or appellant, received a fair trial.

There are three possible outcomes following an appeal:

  1. The conviction could be upheld
  2. It could be vacated
  3. The conviction also could be reversed, and the case returned to the lower court

Sometimes, the judge enters a decision as directed by the Court of Appeals. In other cases, it is up to the District Attorney to decide whether to retry the case following remand.

Notice of Appeal

The first step in appealing a criminal case is filing a Notice of Appeal. This notice is filed in the Superior Court that heard the case. There is no fee for criminal appeals. Once the notice is received, the court clerk prepares the record, including requested transcripts, and forwards it to the Court of Appeals. The appellate clerk puts the case on the docket and notifies the parties. This notice also tells the appellant when the opening brief is due.

The Opening Brief

The opening brief tells the Court what went wrong in the trial court. The first section summarizes the proceeding in the lower court, including what the original charges were and the final decision or verdict on each charge. The second part contains a statement of the relevant facts. This is where the appellant tells the judges what information they need before reading and applying the arguments. Finally, the appellant lists the legal mistakes that occurred in the trial court and explains why the conviction(s) should be overturned.

The appellant has 40 days from the date the record is received by the Court of Appeals to file the opening brief. He may request a 30 day extension, which is frequently granted.

Once the appellant's opening brief is received, the state has time to file an opposing brief. This document summarizes reasons that the state believes the judgment should be upheld. The appellant then gets to file a reply brief to address issues not mentioned in the opening brief.

The Oral Argument

The oral argument can be scheduled a few months after the briefs are filed. Usually only the lawyers appear, and the argument itself is brief. The purpose of this hearing is not to argue the case in its entirety, but to highlight important parts of the brief and answer questions the judges have. The oral argument is usually lasts less than 15 minutes.

When a person had a public defender during the trial, it may also be possible to have a public defender to assist with the appeal at no cost. If not, a local criminal attorney with appellate experience may be able to assist.

Petition for Writ of Habeas Corpus

The third way to seek to have a conviction overturned is a writ of habeas corpus. Cal. Pen. Code 1473 allows a prisoner to seek relief when he is being wrongfully detained. There are many different reasons for seeking a writ, but writs are commonly requested when false evidence was introduced against the prisoner at trial or when the prisoner incorrectly relied on false evidence when entering a guilty plea. Newly discovered evidence could also be a reason for seeking relief.

There is no filing fee for filing a writ of habeas corpus. The state of California has the Petition for Writ of Habeas Corpus available online for prisoners who wish to file on their own. A local criminal defense lawyer may also be able to assist in preparing the documents and arguing the case.

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