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The Basics

FDAP is a non-profit law office that oversees the representation of parties who cannot afford counsel in all criminal, juvenile, and civil commitment appeals in the California Court of Appeal for the First Appellate District. FDAP maintains and trains a panel of approximately 280 attorneys who the Court of Appeal appoints in such cases. For each case, FDAP recommends to the Court a panel attorney with the necessary skills, expertise, and experience. Panel attorneys have their own law practices and offices. In a small number of cases, the Court appoints a FDAP staff attorney.

The First Appellate District consists of twelve counties: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma .

In an appeal, the Court of Appeal reviews what happened in the trial court and whether any errors were made. The Court of Appeal reviews only the transcripts of what was said during the trial court hearings, the documents filed in the trial court, and the legal arguments made by you or your attorney. An appeal is not a trial. The Court of Appeal will not receive or consider new evidence; witnesses do not testify. The Court of Appeal will decide the case based on the arguments your attorney on appeal and the government’s attorney make in written briefs.

Either you or your trial attorney (or in some cases the government) filed a notice of appeal in your case, and the Court of Appeal notified FDAP. Our office then sent you a packet of information and forms in order to determine whether you qualify for appointed counsel, and if so, to arrange for an attorney to be appointed to represent you in the appeal.

In all criminal, juvenile, and civil commitment cases, there is a right to counsel on appeal. If you have an appeal in one of these cases and the Court of Appeal determines you cannot afford an attorney, the Court will appoint a FDAP panel or staff attorney to represent you. When the attorney is appointed, you will receive their name and contact information. 

Visit our Contact Your Attorney on Appeal page for information on how to contact your attorney.

No, the Court of Appeal will appoint a new attorney for the appeal. (In the rare instances when the government appeals, trial counsel may provide representation on appeal.)

While you can request a specific attorney, there is no right to have a specific attorney appointed. The Court of Appeal, on FDAP‘s recommendation, will decide who will represent you.

Once an attorney is appointed, only the Court of Appeal can remove that attorney from the case and appoint a new attorney. It is rare for the Court to remove the attorney at the request of the client.

Try contacting your attorney by mail, phone, or email. Click here for more information on how to contact your attorney. In order for your attorney to keep in communication with you, it is essential that you notify both your attorney and FDAP of any change in your contact information.

Yes, but we usually can only share with your family or friends publicly-available information about your case, such as court deadlines.

Understanding Your Appeal

In an appeal, the Court of Appeal reviews what happened in the trial court and whether any errors were made. The Court of Appeal reviews only the transcripts of what was said during the trial court hearings, the documents filed in the trial court, and the legal arguments made by you or your attorney. An appeal is not a trial. The Court of Appeal will not receive or consider new evidence; witnesses do not testify. The Court of Appeal will decide the case based on the arguments your attorney on appeal and the government’s attorney make in written briefs.

If you have information or evidence that your trial attorney did not have or did not use, share that information with your attorney on appeal. In general, the Court of Appeal will not accept new evidence, but your attorney on appeal can let you know whether there is some other way to present that information, such as a habeas corpus petition or further proceedings in the trial court.

You should communicate directly with your attorney about the case. In general, your communication will be in writing, which is the best way to keep it confidential. Your attorney will explain what is happening in your case, provide you with important documents that are filed in the appeal, and try to answer any question you have about your appeal. Please feel free to write to your attorney. Your attorney will contact you when anything important happens in your appeal. In order for your attorney to stay in communication with you, it is essential that you notify both your attorney and FDAP if your mailing address changes.

Your correspondence and all other information your attorney receives from you in relation to your case will be kept confidential. 

What you say to anyone other than your attorney (e.g. prison guards and officials, inmates, the press, friends, relatives, etc.) is not confidential and might be used against you in court. We strongly advise that you not talk about your case without the advance approval of your attorney on appeal.

The record on appeal includes all the documents and transcripts from the trial court proceedings. The trial court clerk and the court reporters prepare the record on appeal, which often takes several months. Your attorney cannot fully evaluate your appeal until the record is complete. Only one copy of the record is provided to the defense. Your attorney cannot send it to you until the appeal is over.

Your attorney on appeal will read the record and write the appellant’s opening brief, a written document arguing that legal errors were made in your case. Your attorney must show why any errors made were serious enough to have unfairly affected the decisions made by the jury or the judge. The brief is based strictly on the written record of what happened in the trial court, and no new evidence will be considered.  

After your attorney files the opening brief, an attorney for the government will file its brief, called the respondent’s brief. The government usually argues that no errors were made or that any errors do not require reversal of the judgment. Then, your attorney may file the reply brief, which is your attorney’s final opportunity to explain in writing why the arguments made by the government are not correct. If it was the government that appealed, the government will file the opening and reply briefs and your attorney will file the respondent’s brief.

In a criminal or delinquency appeal, if your appointed appellate counsel reviews the appellate record and believes there are no arguable issues to raise on appeal, the attorney must file what is called a Wende brief. In a Wende brief, appellate counsel sets forth the procedural and factual history of the case and informs the Court of Appeal they have not identified any issues that, if successful, would result in a decision helpful to you. Upon the filing of a Wende brief, you have the right to file a supplemental brief on your own raising issues you want to bring to the Court of Appeal’s attention. Whether or not you file a supplemental brief, the Court of Appeal, upon receipt of a Wende brief, will conduct an independent review of the appellate record to determine whether there are any potentially meritorious issues appellate counsel should have raised. If the Court of Appeal finds any such issues, it will order appellate counsel to file a supplemental brief on your behalf addressing them. If the Court of Appeal does not find any such issues, it will issue an opinion affirming the judgment.

The full Wende procedures do not apply to dependency or civil commitment appeals. If appointed appellate counsel in a dependency or civil commitment appeal reviews the appellate record and believes there are no arguable issues to raise on appeal, the attorney must file what is commonly referred to as a no issues brief. Upon receipt of a no issues brief, the Court of Appeal is not obligated to conduct an independent review of the appellate record or issue a formal opinion. However, you have the right to file a supplemental brief raising issues you want to bring to the Court of Appeal’s attention. The Court of Appeal may order appellate counsel to brief issues you raised. If you do not file a supplemental brief and no additional briefing is ordered by the Court of Appeal, the appeal will be dismissed.

After all the briefs have been filed, your attorney will decide whether presenting an oral argument to the Court of Appeal will be helpful to your case. If there is such a hearing, it will be brief (usually no more than 30 minutes) and it will consist only of the attorneys arguing to the Court. If you are out of custody and if you wish to do so, you can observe the hearing in person; in some cases the hearing can also be viewed online. However, if you are in custody, you will not be transported to Court to attend the hearing.

The length of the appeal will depend upon the type and complexity of your case. While some appeals can be decided within one year from the filing of the notice of appeal, most appeals take much longer, some even take years. The Court will decide your appeal in a written decision explaining the reasons for its ruling.

Your attorney will review the written decision of the Court of Appeal. If the Court of Appeal agrees with one or more of the arguments made by your attorney and you win your appeal, then your attorney will advise you of what the next steps will be.

If the Court of Appeal does not agree with the arguments made by your attorney and you lose your appeal, your attorney will determine whether any further legal action may be helpful to you. If so, your attorney may seek rehearing in the Court of Appeal and/or file a petition for review in the California Supreme Court. If your attorney will not be taking any further action, they will inform you of steps you can take on your own.

Additional Questions

No. FDAP only handles criminal, juvenile, and civil commitment appeals. If you have an appointed attorney for an appeal, ask that attorney for recommendations about how to find assistance for your legal matter. If you do not have a pending appeal, call FDAP and ask to speak to the attorney of the day. You might find another organization that can help you on our Client and Family Resources page.

Please visit the FDAP 2020 Pandemic information page where we have an FAQ section for clients and their families.

Covid 19 FAQs

Yes. As of June, 2021, more than 70 percent of the total CDCR population is fully vaccinated. Updates about distribution of the vaccine are available on the CDCR Covid-19 preparedness page. A list of frequently asked questions about the vaccines for residents of correctional facilities is available here.

Yes. While our physical office is closed, we continue to work remotely and can be contacted by phone at (415) 495-3119. We can accept collect calls from inmates. The main number is answered by a live receptionist who can forward calls to any staff member, even if they are working remotely.

The latest information about coronavirus in the state’s prisons, and efforts to protect inmates and staff, can be found on the CDCR website. For updates about ongoing litigation to address Covid-19 within CDCR, visit the Prison Law Office website.

If your loved one is medically-vulnerable (i.e. over the age of 60 or with an underlying health condition), you should consider reaching out to his or her attorney about options for seeking their early release.

Please understand that the situation is changing every day. We will try to update this information as often as we can.