Legal Question in Criminal Law in California

Re: Case for Appeal &'Three Strikes Law''

First of all, your son was convicted of possession, which is not the same thing as ownership. That someone else owned the drugs has nothing to do with whether your son possessed them. If they were within his control, even briefly, and if he knew they were drugs then he's guilty no matter who actually owned them.

The PD should be returning your calls, but it also should be preparing the notice of appeal and seeking a CPC if appropriate. Most PDs will file a notice of appeal in every case they lose, in order to preserve the defendant's rights. Unless your son has somehow managed to fire the PD without getting new counsel, the PD will take care of this.

1. Your son can't introduce new evidence on appeal, but he can as part of a habeas corpus petition.

2. (a) *You* can't file anything, unless it has been signed by your son or his attorney. If you try to do this on your own you will be practicing law without a license and could get into trouble.

A certificate of probable cause (CPC) is only necessary if he pled guilty. If he was convicted after a trial, he doesn't need a CPC.

If he pled guilty, he needs to request a CPC from the judge who accepted the plea. Some appeals (including those which argue that the defendant was not adequately informed of his rights when he accepted the plea or that his sentence was improper) after a guilty plea don't require a CPC, but most do and it can be hard for a layperson to know when one is needed. The CPC can only refer to issues arguable on appeal, which means the new evidence is not a valid basis.

Your son�s notice of appeal must be filed within 60 days of entry of judgment. If he misses this deadline that will be the end of his appeal. Keep in mind that he also has to have the CPC in hand before the deadline, and should file both documents together. Getting a CPC takes time, and the clock keeps ticking while the request is processed.

(b) No, but the Court will appoint a private appellate lawyer for him at public expense if he can�t pay. Since he had a PD, he will presumably qualify.

(c) Messing up a notice of appeal can indeed be tragic. This is one reason why PDs do it instead of leaving the task to the defendant himself. But if your son's notice of appeal is rejected before the 60 days expire he can correct the errors and try again and again until his time runs out.

3. Chances are that this conviction will count as a strike; it depends upon what drug he had. You seem to think he will only get another strike if he commits a similar offense, but that is *not* how it works. Many crimes count as strikes, and someone who has a strike and is later convicted of one of these crimes will get a second strike sentence regardless of whether the crimes were similar.