Section 1240.1 Of Chapter 1. Appeals, When Allowed And How Taken, And The Effect Thereof From California Penal Code >> Title 9. >> Part 2. >> Chapter 1.
1240.1
. (a) In any noncapital criminal, juvenile court, or civil
commitment case wherein the defendant would be entitled to the
appointment of counsel on appeal if indigent, it shall be the duty of
the attorney who represented the person at trial to provide counsel
and advice as to whether arguably meritorious grounds exist for
reversal or modification of the judgment on appeal. The attorney
shall admonish the defendant that he or she is not able to provide
advice concerning his or her own competency, and that the State
Public Defender or other counsel should be consulted for advice as to
whether an issue regarding the competency of counsel should be
raised on appeal. The trial court may require trial counsel to
certify that he or she has counseled the defendant as to whether
arguably meritorious grounds for appeal exist at the time a notice of
appeal is filed. Nothing in this section shall be construed to
prevent any person having a right to appeal from doing so.
(b) It shall be the duty of every attorney representing an
indigent defendant in any criminal, juvenile court, or civil
commitment case to execute and file on his or her client's behalf a
timely notice of appeal when the attorney is of the opinion that
arguably meritorious grounds exist for a reversal or modification of
the judgment or orders to be appealed from, and where, in the
attorney's judgment, it is in the defendant's interest to pursue any
relief that may be available to him or her on appeal; or when
directed to do so by a defendant having a right to appeal.
With the notice of appeal the attorney shall file a brief
statement of the points to be raised on appeal and a designation of
any document, paper, pleading, or transcript of oral proceedings
necessary to properly present those points on appeal when the
document, paper, pleading, or transcript of oral proceedings would
not be included in the normal record on appeal according to the
applicable provisions of the California Rules of Court. The executing
of the notice of appeal by the defendant's attorney shall not
constitute an undertaking to represent the defendant on appeal unless
the undertaking is expressly stated in the notice of appeal.
If the defendant was represented by appointed counsel on the trial
level, or if it appears that the defendant will request the
appointment of counsel on appeal by reason of indigency, the trial
attorney shall also assist the defendant in preparing and submitting
a motion for the appointment of counsel and any supporting
declaration or affidavit as to the defendant's financial condition.
These documents shall be filed with the trial court at the time of
filing a notice of appeal, and shall be transmitted by the clerk of
the trial court to the clerk of the appellate court within three
judicial days of their receipt. The appellate court shall act upon
that motion without unnecessary delay. An attorney's failure to file
a motion for the appointment of counsel with the notice of appeal
shall not foreclose the defendant from filing a motion at any time it
becomes known to him or her that the attorney has failed to do so,
or at any time he or she shall become indigent if he or she was not
previously indigent.
(c) The State Public Defender shall, at the request of any
attorney representing a prospective indigent appellant or at the
request of the prospective indigent appellant himself or herself,
provide counsel and advice to the prospective indigent appellant or
attorney as to whether arguably meritorious grounds exist on which
the judgment or order to be appealed from would be reversed or
modified on appeal.
(d) The failure of a trial attorney to perform any duty prescribed
in this section, assign any particular point or error in the notice
of appeal, or designate any particular thing for inclusion in the
record on appeal shall not foreclose any defendant from filing a
notice of appeal on his or her own behalf or from raising any point
or argument on appeal; nor shall it foreclose the defendant or his or
her counsel on appeal from requesting the augmentation or correction
of the record on appeal in the reviewing court.
(e) (1) In order to expedite certification of the entire record on
appeal in all capital cases, the defendant's trial counsel, whether
retained by the defendant or court-appointed, and the prosecutor
shall continue to represent the respective parties. Each counsel's
obligations extend to taking all steps necessary to facilitate the
preparation and timely certification of the record of all trial court
proceedings.
(2) The duties imposed on trial counsel in paragraph (1) shall not
foreclose the defendant's appellate counsel from requesting
additions or corrections to the record on appeal in either the trial
court or the California Supreme Court in a manner provided by rules
of court adopted by the Judicial Council.