Legal Question in Criminal Law in California

I was convicted in San Diego County of a misdemeanor and sentenced without bail to 180 to days in jail. While I was serving time in jail for the conviction, I filed a timely pro per Notice of Appeal, which included a written request to my sentencing judge to be released from custody. The Judicial Council information on appeal procedures for misdemeanors, Form CR-131, states that upon request to the court, I have a right to be released from custody with or without bail pending appeal ruling. The clerk of the court confirmed to me over the phone receipt of my Notice of Appeal and request to the court for my release from custody, but the clerk told me the sentencing judge doesn�t respond to ex-parte requests. Is there a rule of court requirement, a statutory requirement or a local rule requirement that upon filing of a Notice of Appeal and request to the court for release from custody, an inmate must be released from custody pending appeal ruling?


Asked on 9/07/14, 9:09 pm

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

The form says you have a right to be released, either with or without bail, "but you must ask the court to set bail or release you." That means you have to bring a proper motion, with notice to the prosecutor so she can oppose it. A letter to the judge is not enough. Even if the court should allow you to apply ex parte (I don't know offhand if that's allowed), your letter wouldn't qualify. You have to let the prosecutor know of your request.

You have no right to contact the court about any aspect of your case without including the prosecutor. That seems to be what you did, so the court was quite right to reject your letter.

You probably have the right to try again, but you will need to make your "request to the court" properly.

Good luck.

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Answered on 9/07/14, 9:41 pm


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