There is no automatic second appeal of the same California criminal judgment. After an adverse first appellate decision, your next step depends on which court decided the appeal, when its decision was filed or sent, and what error you want reviewed. You may be able to ask that court for rehearing, seek discretionary review in a higher court, or seek review of a new postjudgment order or a genuinely separate habeas claim. None is a guaranteed second hearing of the same arguments. Get the appellate decision and docket to counsel promptly; these routes have different, short deadlines. (California Rules of Court, rules 8.268, 8.500, 8.889 and 8.1005)
Which court decided your first appeal?
A felony-case appeal ordinarily goes to the Court of Appeal. A misdemeanor-case appeal ordinarily goes to the appellate division of the superior court. The legal classification of the case can be less obvious than the sentence ultimately imposed, so use the actual appellate docket and opinion heading rather than guessing from the charge’s everyday name. (Penal Code §§ 1235(b), 1466)
| First appellate decision | Possible immediate request | What the clock generally uses |
|---|---|---|
| Court of Appeal criminal decision | A petition asking that same court to rehear its decision. The ordinary filing window is 15 days after the decision is filed. If rehearing is granted, the decision is vacated; filing a petition alone does not vacate it. (Rule 8.268) | The decision generally becomes final in that court 30 days after filing, subject to the rule’s immediate-finality and publication or judgment-changing modification provisions. Ordinarily, if the court does not act on rehearing before finality, the petition is deemed denied. If the clerk’s office is closed on the finality date, the court may act the next day the office is open. (Rule 8.268(a)(2)) (Rule 8.366) |
| Superior court appellate-division decision | A petition asking that division for rehearing, generally within 15 days after the clerk sends the decision to the parties. A party may also seek certification for transfer to the Court of Appeal, generally within that 15-day period, on the rule’s grounds for transfer. (Rules 8.889, 8.1005) | The decision generally becomes final 30 days after the clerk sends it, with stated exceptions and restart events. The sent date can differ from a filing date. (Rule 8.888) |
These are starting rules, not a personalized deadline calculation. A publication order or a modification changing the judgment can restart a relevant period; some orders become final immediately. Check the docket for those events and have counsel apply the exact rule to the actual decision. A rehearing petition should identify a concrete problem with the opinion or decision, rather than simply repeat the losing brief. (Rules 8.268, 8.366, 8.888 and 8.889)
Can a higher court review the decision?
After a Court of Appeal decision, a party may petition the California Supreme Court for discretionary review. Rule 8.500 generally requires filing within 10 days after that decision is final in the Court of Appeal. The period generally cannot be extended, apart from the rule’s narrow relief mechanism. The Supreme Court may take a case to resolve conflicting decisions or an important legal question, among other listed grounds; it need not grant review. A rehearing petition is not required first, but if the Court of Appeal opinion misstated or omitted a material fact or issue, rule 8.500(c) makes a timely rehearing request consequential to what the Supreme Court will normally accept as the opinion’s account. Do not simply count 10 days from the first opinion date without checking finality.
After a misdemeanor appellate-division decision, the route is different. Under rule 8.1005, a party may ask that division to certify the case for transfer to the Court of Appeal when transfer is necessary to secure uniformity of decision or settle an important legal question. If that application was made and denied, rule 8.1006 permits a petition for transfer in the Court of Appeal after the appellate-division decision, no later than 15 days after its finality. A denied certification request is a prerequisite for that party’s transfer petition. This is not an ordinary second appeal or a direct rule 8.500 petition from the appellate division to the Supreme Court.
What if the problem is a new order or evidence outside the appeal?
A later new court order affecting substantial rights can sometimes be separately appealable under Penal Code section 1237(b) in a felony case or section 1466(b)(2) in a misdemeanor case. That is an appeal of the new order, if it qualifies—not another attempt to appeal the old judgment. Identify the precise order and its date before assuming a new notice of appeal is available.
A habeas corpus petition is a different collateral procedure for a person unlawfully imprisoned or restrained under Penal Code section 1473. The current rule 4.551 governs noncapital superior-court petition procedure. It does not turn every lost appellate argument into another appeal: In re Dixon states the general bar on using habeas as a substitute for claims that could have been raised on a timely appeal, subject to recognized exceptions. Robinson v. Lewis describes a separate reasonableness and substantial-delay timeliness inquiry for California habeas claims; the decision’s discussion of 120 days between certain habeas filings is not a general deadline or a safe waiting period after losing an appeal. Counsel must evaluate the actual claim and when its supporting facts became known.
Gather the appellate opinion or order, docket, notice showing when the clerk sent it, any publication or modification order, the judgment, prior briefs, and the specific issue you say was missed. If a new order or evidence is involved, keep those records separately. This lets counsel identify the right court and route before a deadline passes. To discuss a California criminal-case record and possible next step, contact the Law Offices of David S. Chesley at (800) 755-5174.