Legal Lingo

A list of motions, hearings, rights, and errors that are sometimes referred to in appellate practice.

352 Motion

(Evid. Code, § 352.)

A motion to exclude evidence on the basis of undue prejudice and other criteria listed in the statute.

402 Hearing

(Evid. Code, § 402.)

A hearing held outside the presence of the jury to decide the admissibility of evidence.


(People v. Dail (1943) 22 Cal.2d 642.)

The death of an appellant while appellate review is pending abates the appeal and all proceedings in the prosecution from its inception. (See also People v. Smith (1994) 21 Cal.App.4th 942.) The procedure for addressing the matter is to file a motion to abate the appeal in the Court of Appeal.

Apprendi Error

(Apprendi v. New Jersey (2000) 530 U.S. 466.)

A fact that increases the penalty for a crime (e.g. motivation by unlawful bias) beyond the prescribed statutory maximum is a question for the jury to decide and must be proved beyond a reasonable doubt. (Id. at p. 490.) The required jury finding does not apply to prior conviction allegations. (Ibid.)

Aranda-Bruton Motion

(People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.)

When two or more defendants are jointly charged, and one has made an extra judicial statement which inculpates a co-defendant, that co-defendant may move for severance on that basis. If the statement cannot be redacted to remove prejudice to the co-defendant, either the prosecution must agree not to use the statement or the severance should be granted. (But see People v. Mitcham (1992) 1 Cal.4th 1027.)

Arbuckle Error

(People v. Arbuckle (1978) 22 Cal.3d 749.)

Whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant’s decision to enter a guilty plea. The defendant can specifically enforce that term of the bargain, or if that’s not possible, withdraw the plea. The defendant can waive this right. (See also People v. Horn (1989) 213 Cal.App.3d 701.)

Awad Stay

(Pen. Code, § 1260; People v. Awad (2015) 238 Cal.App.4th 215.)

In cases that are on appeal, an appellate court has the authority to stay an appeal to permit early relief in the superior court. This is usually initiated by a motion of appellant. (See also People v. Braxton (2004) 34 Cal.4th 798 [limited remand appropriate under Pen. Code, § 1260 to allow trial court to resolve one or more factual issues affecting validity of the judgment but distinct from issues submitted to the jury, or for the exercise of any discretion that is vested by law in the trial court].) This procedure allows the defendant to gain the benefit of early relief, and likely promotes judicial economy by having the issue resolved below.

Bain Error

(People v. Bain (1971) 5 Cal.3d 839.)

The prosecutor may not offer his personal opinion that defendant is guilty unless he explicitly states that such opinion is based in the trial evidence.

Beagle-Castro Motion

(People v. Beagle (1972) 6 Cal.3d 441; People v. Castro (1985) 38 Cal.3d 301.)

When a defendant has one or more prior felony convictions, on his or her motion the trial court must exercise discretion under Evidence Code section 352 whether to permit impeachment of defendant with any or all of the priors, using the factors identified in Beagle.

Blakely Error

(Blakely v. Washington (2004) 542 U.S. 296.)

When the court uses a fact (other than the fact of a prior conviction) neither proven to the jury nor admitted by defendant to impose a sentence beyond the statutory maximum sentence permissible based on the jury’s verdict and/or defendant’s admissions, the court violates defendant’s Sixth and Fourteenth Amendment rights.

Boykin-Tahl Error

(Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.)

A valid guilty plea requires advisement and express waiver by defendant of the fundamental rights to jury trial, to confront and cross-examine witnesses, and against self-incrimination, as well as understanding the nature of the charge and the direct consequences of the plea.

Bracamonte Motion

(People v. Bracamonte (1981) 119 Cal.App.3d 644.)

When a defendant is charged with a status enhancement (such as having a prior conviction or having committed a crime while on bail in another case), he or she may move for bifurcation of the trial proceedings so that the jury deciding the current charge is not prejudiced by being informed of the status enhancing allegation. (See also People v. Calderon (1994) 9 Cal.4th 69.)

Brady Materials

(Brady v. Maryland (1963) 373 U.S. 83.)

Due process requires the prosecution to disclose exculpatory evidence that is material to the defendant’s guilt or innocence, or to punishment. This duty includes disclosure of material evidence impeaching prosecution witnesses. Exculpatory evidence is material if it creates a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed.

Certificate Of Probable Cause (CPC)

(Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b).)

A CPC is a statement prepared by the defendant or the trial attorney, signed under oath or penalty of perjury, “showing reasonable, constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (Pen. Code, § 1237.5, subd. (a).) The statement must be filed with the notice of appeal in the superior court in cases where the defendant wishes to appeal a conviction that was based on a plea of guilty or nolo contendere or an admission to a violation of probation. (Ibid.) The statement asks the trial court to certify that there is a non-frivolous issue challenging the plea or admission. (Pen. Code, § 1237.5, subd. (b).)

Certified Plea

(Pen. Code, § 859, subd. (a).)

A felony plea can be taken by a judge serving as a magistrate, and upon acceptance of the plea, the judge certifies a copy of the proceedings to the court where judgment will be pronounced.

Chapman Standard

(Chapman v. California (1967) 386 U.S. 18.)

When an appellant establishes the lower court proceedings contained error impacting his or her federal constitutional rights, the error requires reversal unless the prosecution can establish it was harmless beyond a reasonable doubt.

Crawford Error

(Crawford v. Washington (2004) 541 U.S. 36.)

A violation of the Sixth Amendment right to confrontation occurs where the government introduces “testimonial” out-of-court statements against the accused and where there has been no prior opportunity of cross-examination, overruling the “indicia of reliability” test set forth in Ohio v. Roberts (1980) 448 U.S. 56, which allowed such statements if they were reliable.

Criminal Protective Order (CPO)

(Pen. Code, §§ 136.2; 273.5, subd. (j), 368, subd. (l), 646.9, subd. (k), & 1203.097, subd.(a)(2).)

A CPO is an order issued by a court under any of the above-listed statutory authorities, which prohibits a defendant from engaging in specific conduct in order to protect a victim of or a witness to a crime. The crime may pertain to domestic violence or other unlawful conduct. The prohibited conduct can include, but is not limited to, no contact, violence, harassment, threats, stalking, sexual abuse, etc. The order may also include a residence exclusion or stay-away conditions.

Cruz/Vargas Waiver

(People v. Cruz (1988) 44 Cal.3d 1247; People v. Vargas (1990) 223 Cal.App.3d 1107.)

As a part of the plea agreement, defendant agrees that failure to appear at sentencing may result in a longer sentence. Defendant must be fully advised of, and waive, a right to withdraw the plea under Penal Code section 1192.5.

Cunningham Error

(Cunningham v. California (2007) 549 U.S. 270.)

In Cunningham, the Supreme Court partially invalidated California’s determinate sentencing law. It held that, because the existence of an aggravating factor is mandatory to impose the upper term under Penal Code section 1170, such a factor must be found by a jury beyond a reasonable doubt. See also Blakely.

Dead Time

(In re Marquez (2003) 30 Cal.4th 14.)

Time spent in custody for which a defendant receives no benefit.

Delgadillo Brief

(People v. Delgadillo (2022) 14 Cal.5th 216.)

Delgadillo brief may be mandated in an appeal challenging a post-conviction judgment when counsel has reviewed the entire record and cannot locate any arguably meritorious issues. Appellant has a right to file a supplemental brief within 30 days.


(Pen. Code, §§ 1054-1054.10.)

Discovery is the “process of finding or learning something that was previously unknown.” (Black’s Law Dict. (8th ed. 2004), p. 498, col. 2.) In criminal cases, discovery is governed by Penal Code section 1054 et seq. The purpose of the discovery statutes includes the ascertainment of truth in trials by requiring timely pretrial discovery. (Pen. Code, § 1054, subd. (a).)

Doyle Error

(Doyle v. Ohio (1976) 426 U.S. 610.)

The prosecution is not allowed to impeach a defendant’s exculpatory statements by referring to defendant’s having remained silent after receiving Miranda warnings.

Esteybar Motion

(Esteybar v. Municipal Court (1971) 5 Cal.3d 119.)

A motion to reduce a wobbler to a misdemeanor pursuant to Penal Code section 17, subdivision (b).

Estrada Retroactivity

(In re Estrada (1965) 63 Cal.2d 740.)

This principle creates a presumption of retroactivity of statutory changes with ameliorative effects on punishment (that is, reduction of punishment for a crime) in cases that are not yet final (e.g., on appeal) when the statute becomes effective. If the statutory changes become effective after the judgment in the case has become final for purpose of appellate review, then the ameliorative changes do not apply. A judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed or, if a petition for certiorari is filed, certiorari is denied. (See People v. Vieira (2005) 35 Cal.4th 264.)

Ex Parte

An ex parte act is defined as “[d]one . . . for the benefit of one party only, and without notice to, or argument by, any person adversely interested; of or relating to court action taken by one party without notice to the other, usu. for temporary or emergency relief . . . . “ (Black’s Law Dict. (8th ed. 2004), p. 616, col. 2.) California Rules of Professional Conduct, rule 3.5(b) governs communications with judges or judicial officers and sets forth exceptions, including rule 3.5(b)(5) “in ex parte matters.”

Execution of Sentence Suspended (ESS)

(People v. Cruz-Lopez (2018) 27 Cal.App.5th 212.)

Defendant is sentenced to state prison or jail incarceration but execution of the sentence is suspended, usually in the context of placing defendant on probation. Compare with ISS, post.

Fares Motion

(People v. Fares (1993) 16 Cal.App.4th 954; Pen. Code, §§ 1237.1, 1237.2.)

A Fares motion seeks to correct an error in the calculation of credits or fines, or other clerical error, in the trial court by way of informal motion.

Faretta Rights

(Faretta v. California (1975) 422 U.S. 806.)

Upon a basic showing of competence, a criminal defendant is entitled, on demand, to self-representation. (But see Martinez v. Court of Appeal of California, Fourth Appellate Dist. (2000) 528 U.S. 152 holding that there is no federal constitutional right to self-representation on appeal.)

Franks Hearing

(Franks v. Delaware (1978) 438 U.S. 154.)

Upon a sufficient prima facie showing, in conjunction with a motion to suppress evidence, a defendant is entitled to a hearing to present evidence challenging the information provided in the search warrant affidavit (a motion to “traverse” or “quash” the warrant).

Griffin Error

(Griffin v. California (1965) 380 U.S. 609.)

A prosecutor is not permitted, either expressly or by direct implication, to comment in the presence of the jury on a defendant’s exercise of the right against self-incrimination.

Harvey Waiver

(People v. Harvey (1979) 25 Cal.3d 754.)

Absent a waiver by defendant, a sentencing court is not permitted to rely upon information relating to counts dismissed in accordance with a plea bargain.

Hitch-Trombetta Motion

(People v. Hitch (1974) 12 Cal.3d 641; California v. Trombetta (1984) 467 U.S. 479.)

Upon a showing that the loss or destruction by law enforcement of exculpatory evidence infringes on defendant’s due process rights, the defendant may seek sanctions including, but not limited to, dismissal, suppression of certain evidence, and favorable jury instructions.

Imperfect Self-Defense

(People v. Flannel (1979) 25 Cal.3d 668.)

May be a defense where defendant had a subjective but unreasonable belief in the need for self-defense or defense of others from deadly harm or great bodily injury.

Imposition of Sentence Suspended (ISS)

(People v. Howard (1997) 16 Cal.4th 1081; People v. Cruz-Lopez (2018) 27 Cal.App.5th 212.)

After conviction, a defendant is not sentenced to state prison or county jail incarceration and, instead, imposition of sentence is suspended and defendant is placed on probation. Compare with ESS, ante.

Kurtzman Error

(People v. Kurtzman (1988) 46 Cal.3d 322.)

Instructing the jury so that the jury is precluded from deliberation on necessarily included offenses unless the jury first acquits defendant of the greater offense. Kurtzman held that Stone v. Superior Court (1982) 31 Cal.3d 503 does not prohibit the jury considering or discussing a lesser offense before returning a verdict on a greater offense, but the jury must first unanimously agree defendant is not guilty of a greater crime before returning a verdict on a lesser offense.

Leon “Good Faith” Exception

(United States v. Leon (1984) 468 U.S. 897.)

Where a search and seizure of evidence has been accomplished pursuant to a warrant which the defendant can show was not supported by probable cause or was in some other way defective, the evidence seized may nonetheless be admissible if the officer executing the search warrant reasonably and in good faith believed the warrant was valid.

Mandatory Supervision

(Pen. Code, § 1170, subd. (h)(5)(B).)

When a trial court imposes a split sentence (see post), the first part is served in custody; the second part, after the defendant is released from physical custody, is known as mandatory supervision. The court determines the length of the two portions at sentencing. During mandatory supervision, the defendant is supervised by the county probation department under terms, conditions, and procedures.

Marsden Motion

(People v. Marsden (1970) 2 Cal.3d 118.)

When defendant expresses to the court a desire to have new counsel appointed, the court must give the defendant the opportunity to articulate the reasons in support of the request in order to properly exercise discretion whether to relieve existing counsel. (But see People v. Ortiz (1990) 51 Cal.3d 975, holding that a trial court may not require an indigent criminal defendant to demonstrate inadequate representation by his retained attorney, or to identify an irreconcilable conflict between them, before it will approve the defendant’s timely motion to discharge his retained attorney and obtain appointed counsel.)

Melendez-Diaz Error

(Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.)

In Melendez-Diaz, the United States Supreme Court held that a defendant’s Sixth Amendment right of confrontation is violated when a prosecutor submits a chemical drug test report without the testimony of the scientist who performed said test.

Mental Health Diversion

(Pen. Code, §§ 1001.35 & 1001.36.)

These sections provide for discretionary diversion of qualified defendants with mental disorders. The court is given authority to order diversion of defendants who have committed a misdemeanor or felony and who suffer from a diagnosed mental illness that “played a significant role in the commission of the charged offense.” (Pen. Code, § 1001.36, subd. (b)(2).) The court must determine whether the defendant meets certain statutory criteria and be satisfied the defendant will not pose an unreasonable risk of danger to public safety. If a defendant successfully completes a mental treatment program within two years, the criminal charges are dismissed. If a defendant in a diversion treatment program is charged with a new crime or performs unsatisfactorily in the program, the trial court must hold a hearing to determine whether the original criminal proceedings should be reinstated.

Miranda Rights

(Miranda v. Arizona (1966) 384 U.S. 436.)

Before engaging in custodial interrogation of a crime suspect, a police officer must advise the suspect of his or her rights against self-incrimination and right to counsel.

Morrissey Hearing

(Morrissey v. Brewer (1972) 408 U.S. 471.)

Morrissey established minimal due process requirements in parole revocation proceedings including an informal hearing to assure the violation is based on verified facts.

Murgia Motion

(Murgia v. Municipal Court (1975) 15 Cal.3d 286.)

Defendant may be entitled to a dismissal of criminal charges upon a showing of selective prosecution for improper purposes, amounting to a violation of the right to equal protection of law.

Nickel Prior

A consecutive five year term ordered for a prior serious felony separately brought and charged pursuant to Penal Code section 667, subdivision (a).

No Opposition to Local Time (NOLT)

The prosecution’s representation that it will not oppose a grant of probation that includes local custody.

One Strike Law

Alternate sentencing scheme providing for life sentences for certain sex offenses, as delineated in Penal Code section 667.61.

Pitchess Motion

(Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

Upon a proper prima facie showing by a defendant charged with a crime against a law enforcement officer (such as resisting arrest), the defense may be entitled to discovery of complaints by other people against the officer in order to try to show a pattern of aggressive behavior by the officer. (See also City of San Jose v. Superior Court (1993) 5 Cal.4th 47, describing the codification of Pitchess motion procedures and privileges, i.e., Evidence Code section 1043 applies to any case in which the defendant can show good cause for the discovery, materiality to the subject matter involved in the pending litigation, and reasonable belief that the governmental agency identified has the records or information from the records.)

Pope-Fosselman Standard

(People v. Pope (1979) 23 Cal.3d 412; People v. Fosselman (1983) 33 Cal.3d 572.)

These are the foundational cases for the definition of the standards of performance of counsel for use in evaluating a claim of ineffective assistance of counsel. (See also Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].)

Post-Release Community Supervision (PRCS)

(Pen. Code, § 3045.)

A person released from prison after serving a term or whose sentence is deemed served based on custody and conduct credits earned, who satisfies the statutory eligibility requirements, is subject to community supervision by the county probation department for a period not exceeding three years (Pen. Code, § 3045, subd. (a)), rather than parole supervision by the Department of Corrections and Rehabilitation.

Proposition 36 (Three Strikes Reform Act of 2012)

(Pen. Code, §§ 667, 1170.12, & 1170.126.)

Proposition 36 amends Penal Code sections 667 and 1170.12 to replace the 25-life sentence for a third strike with a second-strike doubled sentence if the current offense is not a serious or violent felony and certain conditions are met. It also provides a remedy for defendants already sentenced before the initiative passed. (Pen. Code, § 1170.126.) Section 1170.126 allows a petition for resentencing to the trial court within two years of the effective date of the initiative or upon a showing of good cause for the delay. (Pen. Code, § 1170.126, subd. (b).)

Proposition 47 (Safe Neighborhoods and Schools Act)

(Pen. Code, § 1170.18.)

Proposition 47 (1) reduces various felony or wobbler offenses to misdemeanors; (2) provides a procedure for inmates serving felony sentences for such offenses to petition for misdemeanor resentencing; and (3) provides a procedure for individuals who have completed felony sentences to petition to have such felony convictions deemed misdemeanors. A petition or application must be filed on or before November 4, 2022, or at a later date demonstrating good cause for the delay. (Pen. Code, § 1170.18, subd. (j).)

Proposition 57

(Welf. & Inst. Code, §§ 602 & 707.)

Proposition 57 removed the prosecution’s authority to directly file, in adult court, cases against persons who committed crimes as juveniles. Senate Bill 1391, which was enacted on September 30, 2018, and became effective January 1, 2019, added further restrictions. The amendments, in conjunction, allow the prosecution to make a motion for transfer of a minor from juvenile court in cases (1) where the minor is alleged to have committed a felony offense when he or she was 16 years or older or (2) where the minor was 14 or 15 years old at the time the offense was committed and the offense is an enumerated serious or violent felony. (Welf. & Inst. Code, § 707, subds. (a)(1)&(2) & (b).) In cases involving minors 14 or 15 years of age, Senate Bill 1391 added the further restriction that such a transfer may be sought only if the minor was not apprehended until after the end of juvenile court jurisdiction. (Welf. & Inst. Code, § 707, subds. (a)(2).)

Ramey Warrant

(People v. Ramey (1976) 16 Cal.3d 263.)

Absent an arrest warrant or exigent circumstances, the arrest of a crime suspect in his or her own home is unlawful.

Ricardo M. Time

(In re Ricardo M. (1975) 52 Cal.App.3d 744.)

A short term commitment to juvenile hall imposed as a condition of probation in a juvenile delinquency case.

Romero Motion

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

Defense motion inviting the court to use its discretion to strike prior conviction allegations in Three Strikes cases. (Pen. Code, § 667, subds. (b)-(i).)

Serna Motion

(People v. Serna (1985) 40 Cal.3d 239.)

Motion asserting a delay of more than one year between an arrest and the filing of misdemeanor charges is presumptively prejudicial and 6th Amendment rights attach. (But see People v. Belton (1992) 6 Cal.App.4th 1425.)

Slow Plea

(Bunnell v. Superior Court (1975) 13 Cal.3d 592.)

A court trial in which the defendant is advised of the same rights that would be attendant to a guilty plea and which the court indicates the high probability of a guilty verdict; however, issues that would have been waived by an actual guilty plea are not waived and are preserved for appeal.

Some Other Dude Did It (SODDI) Defense

(People v. Hall (1986) 41 Cal.3d 826, criticizing the Mendez-Arline test.)

A request for instructions on third party culpability.

Split Sentence

(Pen. Code, § 1170, subd. (h)(5).)

In a “split” sentence, a specific prison term is ordered, a portion of which is to be served in custody, but with the remaining portion suspended for a period selected at the court’s discretion. During this time, the defendant is placed on mandatory supervision. See Mandatory Supervision, ante.

Stare Decisis Doctrine

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)

All California courts exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. When there is a conflict of appellate decisions, stare decisis does not apply. The inferior jurisdiction can and must choose between the conflicting decisions.

Terry Stop

(Terry v. Ohio (1968) 392 U.S. 1 .)

Police may perform a pat down search for weapons where there is reason to believe the suspect is armed and dangerous.

Three Strikes Law

Alternate sentencing system in Penal Code section 667, subdivisions (b) through (i).

Such provisions provide for a life sentence for a qualifying third felony, where a person has two prior serious or violent felonies (see Penal Code for sentencing specifics.)

Vickers Hearing

(People v. Vickers (1972) 8 Cal.3d 451.)

An evidentiary hearing held to establish the facts for a violation of probation.

Watson Standard

(People v. Watson (1956) 46 Cal.2d 818.)

When appellate counsel establishes error that does not rise to the level of the Chapman standard (and is not one of those rare types of error which is reversible per se), reversal is not required unless the appellant can show the error resulted in a miscarriage of justice, namely that absent the error a more favorable result for the defendant was reasonably probable.

Wende-Anders Brief

(People v. Wende (1979) 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738.)

When appellate counsel has reviewed the entire record and cannot locate any arguably meritorious issues, counsel should not take a position adverse to his or her client, but should file a pleading directing the court to any potential issues and requesting that the appellate court review the record for possible error in the court below.

West Plea

(People v. West (1970) 3 Cal.3d 595.)

West is the seminal case discussing the legality of plea bargaining in California. However, a West plea is most likely to stand for a plea which “does not constitute an express admission of guilt but only a consent to be punished as if guilty.” (People v. Bradford (1997) 15 Cal.4th 1229, 1374.)

Wheeler Motion

(People v. Wheeler (1978) 22 Cal.3d 258.)

A motion to contest a prosecutor’s peremptory challenge to remove potential jurors who are members of a cognizable group based on group bias.

Yurko Error

(In re Yurko (1974) 10 Cal.3d 857.)

Boykin-Tahl requirements apply to enhancing allegations.

The original version of the article originally appeared in a newsletter published by the Central California Appellate Project (CCAP) in 2010, and ADI wishes to acknowledge and thank CCAP for its substantial contribution.

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