Tooby's California Post-Conviction Relief for Immigrants

Under California law, a defendant may appeal from an order made after judgment, affecting the substantial rights of the defendant.[322]  A ruling on a motion to vacate judgment ordinarily is not appealable when the appeal bypasses or duplicates a direct appeal from the judgment itself.[323]  There are several exceptions.

A ruling denying a motion to vacate judgment would qualify semantically as an order after judgment affecting substantial rights, but such an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself.[324]  “In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited [sic] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment.”[325]

The key question therefore is whether the motion to vacate is made on grounds that could have been raised on direct appeal from the judgment itself.  If so, direct appeal from the judgment is an adequate remedy.  If not, appeal from the post-judgment order must lie under Penal Code § 1237(b) if it affects substantial rights.  This is the basis for a line of cases creating a so-called “silent record exception” to this rule, which allows an appeal where the record on appeal from the judgment would not have shown the error sought to be asserted.[326]  This “exception” is just a restatement of the rule that no appeal will lie for motions to vacate made on grounds that could have been, but were not, raised on direct appeal.

An appeal from a post-judgment motion to vacate a guilty plea based on a claim of ineffective assistance of counsel will be appealable since the basis for the claim is generally not contained in the record.  This is always the case, as extra-record evidence of the defendant's alien status or of counsel's performance will be presented in the motion to vacate.[327] 

Even where the original record does disclose the basis for the motion to vacate, it might be argued that extraordinary circumstances warrant acceptance of an appeal, citing People v. Banks,[328] in which the court exercised its inherent power to accept an appeal from an apparently unappealable order denying a post-judgment motion to vacate a guilty plea because the defendant raised an important constitutional question of first impression.

As seen below, the California Supreme Court has held that an order denying a motion to vacate a plea for the failure to provide the Penal Code § 1016.5 warnings, is an appealable order.[329]  The result should be the same for a nonstatutory motion to vacate.

[322] Penal Code § 1237(a) & (b) (felonies); Penal Code § 1466(2)(a) & (b)  (misdemeanors).

[323] People v. Thomas (1959) 52 Cal.2d 521.

[324] People v. Thomas (1959) 52 Cal.2d 521, 527.

[325] Ibid.

[326] See Witkin & Epstein, supra, Appeal § 3171.

[327] Cf. People v. Gallardo (2000) 77 Cal.App.4th 971, 981 (suggesting that an order denying a statutory motion to vacate under Penal Code § 1016.5 would be appealable under the silent record exception where defendant's immigrant status was not reflected in the record).

[328] People v. Banks (1959) 53 Cal. 2d 370, 379-81.

[329] People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183.