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2014 California Rules of Court

Rule 8.850. Application of chapter

The rules in this chapter apply only to appeals in misdemeanor cases. In postconviction appeals, misdemeanor cases are cases in which the defendant was convicted of a misdemeanor and was not charged with any felony. In preconviction appeals, misdemeanor cases are cases in which the defendant was charged with a misdemeanor but was not charged with any felony. A felony is "charged" when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a.

Rule 8.850 adopted effective January 1, 2009.

Advisory Committee Comment

Chapters 1 and 4 of this division also apply in appeals from misdemeanor cases. The rules that apply in appeals in felony cases are located in chapter 3 of division 1 of this title.

Penal Code section 1466 provides that an appeal in a "misdemeanor or infraction case" is to the appellate division of the superior court, and Penal Code section 1235(b), in turn, provides that an appeal in a "felony case" is to the Court of Appeal. Penal Code section 691(g) defines "misdemeanor or infraction case" to mean "a criminal action in which a misdemeanor or infraction is charged and does not include a criminal action in which a felony is charged in conjunction with a misdemeanor or infraction" (emphasis added), and section 691(f) defines "felony case" to mean "a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony" (emphasis added).

As rule 8.304 from the rules on felony appeals provides, the following types of cases are felony cases, not misdemeanor cases: (1) an action in which the defendant is charged with a felony and a misdemeanor, but is convicted of only the misdemeanor; (2) an action in which the defendant is charged with felony, but is convicted of only a lesser offense; or (3) an action in which the defendant is charged with an offense filed as a felony but punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under Penal Code section 17(b). Rule 8.304 makes it clear that a "felony case" is an action in which a felony is charged regardless of the outcome of the action. Thus the question of which rules apply-these rules governing appeals in misdemeanor cases or the rules governing appeals in felony cases-is answered simply by examining the accusatory pleading: if that document charged the defendant with at least one count of felony (as defined in Penal Code, section 17(a)), the Court of Appeal has appellate jurisdiction and the appeal must be taken under the rules on felony appeals even if the prosecution did not result in a punishment of imprisonment in a state prison.

It is settled case law that an appeal is taken to the Court of Appeal not only when the defendant is charged with and convicted of a felony, but also when the defendant is charged with both a felony and a misdemeanor (Pen. Code, § 691(f)) but is convicted of only the misdemeanor (e.g., People v. Brown (1970) 10 Cal.App.3d 169); when the defendant is charged with a felony but is convicted of only a lesser offense (Pen. Code, § 1159; e.g., People v. Spreckels (1954) 125 Cal.App.2d 507); and when the defendant is charged with an offense filed as a felony but punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under Penal Code section 17(b) (e.g., People v. Douglas (1999) 20 Cal.4th 85; People v. Clark (1971) 17 Cal.App.3d 890).

Trial court unification did not change this rule: after as before unification, "Appeals in felony cases lie to the [C]ourt of [A]ppeal, regardless of whether the appeal is from the superior court, the municipal court, or the action of a magistrate. Cf. Cal. Const. art. VI, § 11(a) [except in death penalty cases, Courts of Appeal have appellate jurisdiction when superior courts have original jurisdiction 'in causes of a type within the appellate jurisdiction of the [C]ourts of [A]ppeal on June 30, 1995. . . .']." ("Recommendation on Trial Court Unification" (July 1998) 28 Cal. Law Revision Com. Rep. 455-56.)

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