The denial of a motion for a finding of factual innocence (Pen. Code, § 1485.55) is an appealable order. In 1990, Caldwell was convicted of second degree murder and attempted murder based on a drug deal gone bad. In 2009, he filed a petition for writ of habeas corpus which in part challenged his conviction based on ineffective assistance of trial counsel. The trial court granted the petition. Because a prosecution witness had died since the initial trial and the trial court would not permit her recorded testimony to be introduced at a retrial, the prosecution dismissed the case. In 2015, Caldwell filed a motion for finding of actual innocence to support his claim with the California Victim Compensation Board. The motion was denied and Caldwell appealed. The prosecution moved to dismiss the appeal as from a nonappealable order, arguing that Penal Code section 1485.55 does not provide a right to appeal the denial of an actual innocence motion. Held: Order is appealable. The court in In re Anthony (2015) 236 Cal.App.4th 204, concluded the granting of a motion for finding of actual innocence is not appealable by the prosecution. This decision is supported by the provisions of Penal Code section 1238, which strictly limit the prosecution’s right to appeal. However, Penal Code section 1237, subdivision (b) affords defendants broad rights of appeal where the trial court’s order affects a substantial right. The California Supreme Court regularly allows defendants to appeal notwithstanding the absence of a specific appellate mechanism in the statute under which a defendant seeks relief and liberally interprets section 1237, subdivision (b)’s requirement that the challenged order must affect the defendant’s substantial rights. As Caldwell is pursuing a substantial right in asking the appellate court to reconsider his factual innocence claim, the denial of his motion is appealable. [Editor’s Note: In an unpublished part of the opinion, the Court of Appeal concluded the trial court properly denied Caldwell’s factual innocence motion.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A148828M.PDF