Counsel Admonished for Failing to Note Order on Appeal Was Not Appealable

Timothy Kowal, Esq.
April 27, 2022

The appellate court in People v. Williams (2022) 75 Cal.App.5th 584 admonished a criminal defendant’s attorney for failing to tell the court about a relevant case that had held the kind of order involved there was not appealable.

The appeal was from an order denying resentencing under Penal Code 1170. The defendant had petitioned for resentencing based on Los Angeles DA George Gascón’s more lenient policies. But the trial court rejected the petition as untimely. The defendant filed an appeal in pro per.

For appellate representation, the case was forwarded to the California Appellate Project. The CAP’s executive director himself took on responsibility for the case as counsel of record. In the opening brief, counsel included a jurisdictional statement that the order was appealable under Penal Code section 1237(b), which makes a postjudgment order appealable that “affect[s] the substantial rights of the party.” A pretty malleable standard. So maybe that was enough?

Unfortunately for the defendant and his counsel, the Court of Appeal did its own research and found another Court of Appeal case on point holding that an appeal from an order denying resentencing is not appealable. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726 [a Fourth District case, also citing First and Second District cases].)

The court gave defendant and counsel a chance to respond. The court directed counsel to submit a letter brief whether Chlad could be distinguished, and whether counsel’s failure to mention Chlad violated counsel’s duty of candor. (Rules Prof. Conduct, rule 3.3(a)(2) [a lawyer shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel ....”].)

To this, counsel took an odd tack. He did not try to distinguish Chlad. He also did not take the position that he was unaware of Chlad. Instead, counsel justified his decision by asserting he had a duty “to refrain from arguing against his client . . . .”

The court called this “a false choice . . . because the duty of candor is one of disclosure not acquiescence.” Counsel could have met his duty of candor by simply citing the adverse authority and arguing “this court should decline to follow that authority and permit the appeal to proceed as one taken from an order after judgment affecting substantial rights.”

The court warned that any future violation “may warrant disciplinary review by the State Bar or other corrective action.”

The Upshot: If you are an appellant, this is a good reminder that the Court of Appeal pays close attention to your Statement of Appealability in your opening brief. Do not gloss over it. If there is doubt about appealability, be prepared to raise the collateral-order doctrine, or to seek review on a writ basis. If you are unsure whether your order is appealable, consider consulting an appellate specialist.

Comment: There is just one word about this opinion bothers me, and that word is, “controlling.” As in, the citation to rule 3.3(a)(2) of the Rules of Professional Conduct, which says a lawyer must disclose any legal authority “in the controlling jurisdiction....”

This opinion was issued by the Second District Court of Appeal. Chlad was a Fourth District case. And regardless of the district, the California appellate court system has no horizontal stare decisis, which means that no Court of Appeal opinion is binding on any other Court of Appeal.

Comment 3 to rule 3.3 states: “Legal authority in the controlling jurisdiction may include legal authority outside the jurisdiction in which the tribunal* sits, such as a federal statute or case that is determinative of an issue in a state court proceeding or a Supreme Court decision that is binding on a lower court. But this case did not involve a federal statute, or a Supreme Court decision that was “binding” on this court.

So Chlad was not “controlling” authority. It was merely persuasive authority.

Still, bad move not to cite it. But in a system like California’s in which no Court of Appeal decision is binding on any other Court of Appeal, it seems wrong to me to require, under pain of sanctions, that attorneys must bring up cases that have no binding effect.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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