Can You Appeal An Order After Judgment ?
"An order is not appealable unless declared to be so by the Constitution or by statute." (People v. Keener (1961) 55 Cal. 2d 714,720 [12 Cal. Rptr. 859, 361 P.2d 587].)
Stated simply, a criminal appeal by the defendant may be taken only from "a final judgment of conviction" ( 1237, subd. (a), 1466, subd. (2)(A)) or from "any order made after judgment, affecting the substantial rights" of the party ( 1237, subd. (b), 1466, subd. (2)(B)).
Our resolution of these three appeals hinges on interpreting and applying the phrase "order made after judgment, affecting the substantial rights" of the defendant.
If interpreted broadly, the phrase would apply to any postjudgment attack upon the conviction or sentence. Postjudgment trial level attacks seeking to nullify convictions and/or sentences come in many forms.
They may be called, for example, motions to vacate, motions to correct, or motions to set aside judgments, petitions for writ of habeas corpus, or petitions for writ of error coram nobis.
The court's denial of relief in any such situation could affect the defendant's substantial rights. However, decisional authority has limited the scope of the phrase, defining appealability more narrowly.
We collect and consider here appellate court limitations on appealability of superior court orders rejecting postjudgment challenges.
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. ( People v. Thomas (1959) 52 Cal. 2d 521, 527 [342 P.2d 889].)
"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." (Ibid.)
Several exceptions have modified this general prohibition, however, including a narrow exception when the record on appeal would not have shown the error, and an exception for attacks upon void judgments. (6 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Appeal, 3171-3173, pp. 3927-3930.)
Furthermore, the California Supreme Court has acknowledged that both the general rule and its exceptions are court created and has concluded that appellate courts may, when circumstances warrant, entertain appeals from rulings denying motions to vacate judgments.
The standards for accepting such appeals are similar to those applied by the courts when deciding whether to review on the merits claims made by a petition for extraordinary writ. (People v. Banks (1959) 53 Cal. 2d 370, 379-381, fn. 5 [1 Cal. Rptr. 669, 348 P.2d 102] (Banks).)
In Banks, the court entertained the appeal because it presented a "question as to the constitutionality or interpretation of a statute which is of concern to a number of persons other than the petitioner" and because the question had not been previously answered by the Supreme Court. (Id. at p. 381, fn. 5.)
Several courts have accepted without comment appealability of rulings in one narrow category of motions to vacate: motions to vacate brought under section 1016.5, subdivision (b), for failure to advise of immigration consequences. ( People v. Suon (1999) 76 Cal. App. 4th 1 [90 Cal. Rptr. 2d 1]; People v. Ramirez (1999) 71 Cal. App. 4th 519 [83 Cal. Rptr. 2d 882]; People v. Shaw (1998) 64 Cal. App. 4th 492 [74 Cal. Rptr. 2d 915]; People v. Gontiz (1997) 58 Cal. App. 4th 1309 [68 Cal. Rptr. 2d 786]; People v. Castaneda (1995) 37 Cal. App. 4th 1612 [44 Cal. Rptr. 2d 666].)
These decisions appear to defy the tenet that rulings on motions to vacate are not appealable when they offer the defendant a second chance to appeal the judgment itself.
However, if the appeal record in such a case did not show that the defendant was an immigrant, the case would meet the silent record exception to nonappealability.
Where the record would have supported appeal from the judgment itself, but the judgment was not appealed, permitting appeal from the ruling on the motion to vacate may correlate to the Legislature's specifically authorizing the motion and explicitly directing courts to grant relief upon a proper showing.
Because these decisions are not from the state's highest court and are silent about their rationale, they do not signal any alteration of the basic rule that appeal from denial of a motion to vacate does not normally provide a second chance to appeal the judgment itself.