California Death Penalty Appeals Overview

Criminal Court

The following is a brief overview of the death penalty appeals process in California.


Once a grand jury has indicted you for a capital offense you will be tried in a California State Court. This trial will consist of two phases: guilt and sentencing. The guilt phase is where your capital case is tried in front of a jury.

If a jury convicts you of the capital offense your case will move to the sentencing phase. Here, the jury will determine if you should be sentenced to death or life in prison. If the jury decides that the death penalty should be applied, the decision will be reviewed by a judge. The judge will either affirm the imposition of the death penalty or reduce your sentence to life in prison.

Automatic State Appeal

If you have been convicted of a capital offense and the death penalty has been imposed, your case will automatically be reviewed by the California Supreme Court. You will generally have a new attorney (or two) represent you at this point in the appeals process.

Defense attorneys and state prosecutors will submit arguments to the Supreme Court about why you should or should not be executed. The Supreme Court will review these written briefs, hear oral arguments, and review the case to determine if the death penalty is appropriate. Within 90 days the Court must either affirm or reverse your conviction and/or sentence.

Other State and Federal Appeals

If you have been sentenced to death in California you can pursue appeals on both the federal and state level. Writs of certiorari and writs of habeas corpus are the two primary vehicles for appealing a death penalty case.

Writ of Certiorari

If the California Supreme Court or Federal Court of Appeals affirms your sentence you may file a writ of certiorari in the Supreme Court of the United States. The petition explains that you believe the lower court was wrong in affirming your sentence and that your Constitutional rights have been violated.

The Supreme Court will review your petition and either grant or deny it. If your petition is granted, you will have the opportunity to present your case to the Supreme Court. If your petition is denied, your direct appeal is over. However, you can still pursue a habeas corpus review.

Habeas Corpus

In addition to your direct appeals, you may file a petition for habeas corpus. In fact, death row inmates are not limited to filing a specific number of habeas corpus petitions they can file. Here, you can raise claims and offer evidence that were not part of your criminal trial or other appeals. In this appeal, you can essentially argue that you are being held illegally and unlawfully, and that your sentence and/or conviction was wrong. Common arguments on a writ of habeas corpus include:

  • Prosecutorial misconduct and Brady violations;
  • Ineffective assistance of counsel;
  • Newly discovered evidence; and
  • Juror misconduct.

If your petition is granted, the court hearing your case will order a hearing to determine if your argument is persuasive. The court must either affirm or reverse your sentence.

The California death penalty appeals process is complicated and can take years to complete. If you are facing criminal charges that are punishable by death it is important to speak with an experienced attorney.

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