Client and Family FAQs

The Basics

What is the First District Appellate Project (“FDAP”)? caret

FDAP is a non-profit law office that oversees the representation of parties who cannot afford counsel in all criminal, juvenile, and civil commitment appeals in the California Court of Appeal for the First Appellate District. FDAP maintains and trains a panel of approximately 280 attorneys who the Court of Appeal appoints in such cases. For each case, FDAP will recommend to the Court a panel attorney with the necessary skills, expertise, and experience. Panel attorneys have their own law practices and offices. In a small number of cases, the Court appoints a FDAP staff attorney.

The First Appellate District consists of twelve counties: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma .

What is an appeal? caret

In an appeal, the Court of Appeal reviews what happened in the trial court and whether any errors were made. The Court of Appeal reviews only the transcripts of what was said during the trial court hearings, the documents filed in the trial court, and the legal arguments made by you or your attorney. An appeal is not a trial. The Court of Appeal will not receive or consider new evidence; witnesses do not testify. The Court of Appeal will decide the case based on the arguments your attorney on appeal and the government’s attorney make in written briefs.

Why was I contacted by FDAP? caret

Either you or your trial attorney (or in some cases the government) filed a notice of appeal in your case, and the Court of Appeal notified FDAP. Our office then sent you a packet of information and forms in order to determine whether you qualify for appointed counsel, and if so, to arrange for an attorney to be appointed to represent you in the appeal.

Will an attorney be appointed for me for the appeal? caret

In all criminal, juvenile, and civil commitment cases, there is a right to counsel on appeal. If you have an appeal in one of these cases and the Court of Appeal determines you cannot afford an attorney, the Court will appoint a FDAP panel or staff attorney to represent you. When the attorney is appointed, you will receive their name and contact information. Click here for more information on how to contact your attorney on appeal.

Can my trial attorney represent me on appeal? caret

No, the Court of Appeal will appoint a new attorney for the appeal. (In the rare instances when the government appeals, trial counsel may provide representation on appeal.)

Can I request a specific attorney to handle my appeal? caret

While you can request a specific attorney, there is no right to have a specific attorney appointed. The Court of Appeal, on FDAP‘s recommendation, will decide who will represent you.

Can I change my attorney on appeal? caret

Once an attorney is appointed, only the Court of Appeal can remove that attorney from the case and appoint a new attorney. It is rare for the Court to remove the attorney at the request of the client.

What is the best way to communicate with my attorney on appeal? caret

Try contacting your attorney by mail, phone, or email. Click here [JS1] for more information on how to contact your attorney. In order for your attorney to keep in communication with you, it is essential that you notify both your attorney and FDAP of any change in your contact information.

Can my family or friends call for information about my case? caret

Yes, but we usually can only share with your family or friends publicly-available information about your case, such as court deadlines.

Understanding Your Appeal

What is an appeal? caret

In an appeal, the Court of Appeal reviews what happened in the trial court and whether any errors were made. The Court of Appeal reviews only the transcripts of what was said during the trial court hearings, the documents filed in the trial court, and the legal arguments made by you or your attorney. An appeal is not a trial. The Court of Appeal will not receive or consider new evidence; witnesses do not testify. The Court of Appeal will decide the case based on the arguments your attorney on appeal and the government’s attorney make in written briefs.

What if I have new evidence? caret

If you have information or evidence that your trial attorney did not have or did not use, share that information with your attorney on appeal. In general, the Court of Appeal will not accept new evidence, but your attorney on appeal can let you know whether there is some other way to present that information, such as a habeas corpus petition or further proceedings in the trial court.

Who will keep me updated about my appeal? caret

You should communicate directly with your attorney about the case. In general, your communication will be in writing, which is the best way to keep it confidential. Your attorney will explain what is happening in your case, provide you with important documents that are filed in the appeal, and try to answer any question you have about your appeal. Please feel free to write to your attorney. Your attorney will contact you when anything important happens in your appeal. In order for your attorney to stay in communication with you, it is essential that you notify both your attorney and FDAP if your mailing address changes.

Your correspondence and all other information your attorney receives from you in relation to your case will be kept confidential. 

Am I allowed to talk to anyone other than my attorney about my case? caret

What you say to anyone other than your attorney (e.g. prison guards and officials, inmates, the press, friends, relatives, etc.) is not confidential and might be used against you in court. We strongly advise that you not talk about your case without the advance approval of your attorney on appeal.

What is the record on appeal? caret

The record on appeal includes all the documents and transcripts from the trial court proceedings. The trial court clerk and the court reporters prepare the record on appeal, which often takes several months. Your attorney cannot fully evaluate your appeal until the record is complete. Only one copy of the record is provided to the defense. Your attorney cannot send it to you until the appeal is over.

How will my attorney and the government make the arguments to the Court of Appeal? caret

Your attorney on appeal will read the record and write the appellant’s opening brief, a written document arguing that legal errors were made in your case. Your attorney must show why any errors made were serious enough to have unfairly affected the decisions made by the jury or the judge. The brief is based strictly on the written record of what happened in the trial court, and no new evidence will be considered.  

After your attorney files the opening brief, an attorney for the government will file its brief, called the respondent’s brief. The government usually argues that no errors were made or that any errors do not require reversal of the judgment. Then, your attorney may file the reply brief, which is your attorney’s final opportunity to explain in writing why the arguments made by the government are not correct. If it was the government that appealed, the government will file the opening and reply briefs and your attorney will file the respondent’s brief.

What happens if my appellate attorney believes there are no arguable issues to raise on my behalf? caret

In a criminal or delinquency appeal, if your appointed appellate counsel reviews the appellate record and believes there are no arguable issues to raise on appeal, the attorney must file what is called a Wende brief. In a Wende brief, appellate counsel sets forth the procedural and factual history of the case and informs the Court of Appeal they have not identified any issues that, if successful, would result in a decision helpful to you. Upon the filing of a Wende brief, you have the right to file a supplemental brief on your own raising issues you want to bring to the Court of Appeal’s attention. Whether or not you file a supplemental brief, the Court of Appeal, upon receipt of a Wende brief, will conduct an independent review of the appellate record to determine whether there are any potentially meritorious issues appellate counsel should have raised. If the Court of Appeal finds any such issues, it will order appellate counsel to file a supplemental brief on your behalf addressing them. If the Court of Appeal does not find any such issues, it will issue an opinion affirming the judgment.

The full Wende procedures do not apply to dependency or civil commitment appeals. If appointed appellate counsel in a dependency or civil commitment appeal reviews the appellate record and believes there are no arguable issues to raise on appeal, the attorney must file what is commonly referred to as a no issues brief. Upon receipt of a no issues brief, the Court of Appeal is not obligated to conduct an independent review of the appellate record or issue a formal opinion. However, you have the right to file a supplemental brief raising issues you want to bring to the Court of Appeal’s attention. The Court of Appeal may order appellate counsel to brief issues you raised. If you do not file a supplemental brief and no additional briefing is ordered by the Court of Appeal, the appeal will be dismissed.

Will there be a hearing in the Court of Appeal? caret

After all the briefs have been filed, your attorney will decide whether presenting an oral argument to the Court of Appeal will be helpful to your case. If there is such a hearing, it will be brief (usually no more than 30 minutes) and it will consist only of the attorneys arguing to the Court. If you are out of custody and if you wish to do so, you can observe the hearing in person; in some cases the hearing can also be viewed online. However, if you are in custody, you will not be transported to Court to attend the hearing.

How long will my appeal take? caret

The length of the appeal will depend upon the type and complexity of your case. While some appeals can be decided within one year from the filing of the notice of appeal, most appeals take much longer, some even take years. The Court will decide your appeal in a written decision explaining the reasons for its ruling.

What happens after the Court makes its decision? caret

Your attorney will review the written decision of the Court of Appeal. If the Court of Appeal agrees with one or more of the arguments made by your attorney and you win your appeal, then your attorney will advise you of what the next steps will be.

If the Court of Appeal does not agree with the arguments made by your attorney and you lose your appeal, your attorney will determine whether any further legal action may be helpful to you. If so, your attorney may seek rehearing in the Court of Appeal and/or file a petition for review in the California Supreme Court. If your attorney will not be taking any further action, they will inform you of steps you can take on your own.

Additional Questions

Can a FDAP panel or staff attorney be appointed to represent me in a case that is not a criminal, juvenile, or civil commitment appeal? If not, where can I get help? caret

No. FDAP only handles criminal, juvenile, and civil commitment appeals. If you have an appointed attorney for an appeal, ask that attorney for recommendations about how to find assistance for your legal matter. If you do not have a pending appeal, call FDAP and ask to speak to the attorney of the day. You might find another organization that can help you on our Client and Family Resources page.

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What resources are available regarding COVID-19? caret

Please visit the FDAP 2020 Pandemic information page where we have an FAQ section for clients and their families.

Covid 19 FAQs

Are people in custody at CDCR getting vaccinated? caret

Yes. CDCR reports that some inmates and employees started receiving the vaccine in late December 2020. These vaccinations are supplied through the California Department of Public Health (CDPH). As of late January 2021, more than 30,000 individuals have received first-round vaccines statewide (Staff: 22,234; Patients: 8,782). CDCR intends to offer COVID-19 vaccinations to all CDCR employees and incarcerated individuals. Updates about distribution of the vaccine are available on the CDCR Covid-19 preparedness page. A list of frequently asked questions about the vaccines for residents of correctional facilities is available here.

Can my incarcerated family member or friend reach FDAP? caret

Yes. While our physical office is closed, we continue to work remotely and can be contacted by phone at (415) 495-3119. We can accept collect calls from inmates. The main number is answered by a live receptionist who can forward calls to any staff member, even if they are working remotely.

Is there a chance my loved one will be released from jail or prison early? caret

Maybe. Some counties, including Alameda and San Francisco, have ordered the early release of some non-violent offenders. The California Supreme Court has also issued an emergency relief advisory that could result in the release of some individuals. The Court is urging superior courts to:

  • Lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses.
  • Consider a defendant’s existing health conditions, and conditions existing at the anticipated place of confinement, in setting conditions of custody for adult or juvenile defendants.
  • Identify detainees with less than 60 days in custody to permit early release, with or without supervision or community-based treatment.
  • Determine the nature of supervision violations that will warrant detention in county jail, or “flash incarceration,” to drastically reduce or eliminate its use during the current health crisis.
  • Prioritize arraignments and preliminary hearings for in-custody defendants, and the issuance of restraining orders.
  • Prioritize juvenile dependency detention hearings to ensure they are held within the time required by state and federal law.
  • Allow liberal use of telephone or video appearance by counsel and defendants for routine or non-critical criminal matters.

As of July 1, 2020, CDCR will begin implementing a community supervision program for people with six months or less to serve on their sentence. Those with serious or violent felonies, domestic violence convictions or sex offender registration requirements are not eligible. CDCR has not provided guidance as to how the program will be administered, or how many people will be eligible for release.

What is being done to keep people in prison or jail safe from the pandemic? caret

The latest information about coronavirus in the state’s prisons, and efforts to protect inmates and staff, can be found on the CDCR website. For updates about ongoing litigation to address Covid-19 within CDCR, visit the Prison Law Office website. For information about self-advocacy, the Prison Advocacy Network has issued a “Routes To Release” resource guide.

If your loved one is medically-vulnerable (i.e. over the age of 60 or with an underlying health condition), you should consider reaching out to his or her attorney about options for seeking their early release.

Please understand that the situation is changing every day. We will try to update this information as often as we can.

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