Following a conviction, the first avenue to seek relief is a direct appeal. Simply put, a direct appeal is a request for a review of the trial record to determine if any errors were committed during the trial. Appeals are very complex and the likelihood of success is very low. However, direct appeals are far from the only option to challenge a conviction or a sentence.

If your appeal has been unsuccessful and you are in either actual or constructive (parole or probation) custody, you can still seek post-conviction relief through a Habeas Corpus petition. The petition can be used to challenge a conviction, sentence, or the conditions of incarceration. Habeas petitions do not have the same strict timelines as a direct appeal and can be filed even years after a conviction. Furthermore, a Habeas petition allows for the introduction of new evidence or information that was not part of the trial record.

For people who are no longer in custody, having a conviction on the record can have a severe impact on their lives and can present a serious challenge to moving on and being able to build a decent life. Moreover, for non-citizens, even a minor or a very old conviction can lead to their removal from the country. Fortunately, in 2016, the state legislature passed SB 813, which allowed people who are no longer in custody to challenge the validity of their convictions and to seek post-conviction relief by filing a motion to vacate. A motion to vacate can be filed on three separate grounds including 1) if a prejudicial error had occurred, which damaged the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence; 2) if evidence of actual innocence had been discovered; and 3) if the conviction or sentence was based on a person’s race, ethnicity, or national origin.

In addition, as part of its ongoing criminal justice reform, the state legislature, recognizing the need for more equitable sentencing, enacted two seminal bills, SB 1437 and SB 775, which effectively eliminated the role of the natural and probable consequences doctrine in murder cases and dramatically limited who can be charged with murder, manslaughter, or attempted murder under the felony murder doctrine. Both bills are retroactive and allow people who have been convicted under the old rules to petition the courts to have their convictions vacated and sentences recalled.

Finally, in an effort to eliminate some of the harshest sentencing enhancements in California, which have added years to countless individuals’ sentences, the state lawmakers have passed several important bills that could serve as a basis to petition the court for resentencing. Some of those laws include, SB 81, AB 2942, SB 1393, and AB 256 among others.

At the Justice Firm, we fight zealously to protect our clients’ rights and we believe that everyone is entitled to the opportunity to build a better future. If you or a loved one is facing criminal charges, or needs assistance with a post-conviction relief, our highly skilled and compassionate attorneys are here to help and to answer any questions you might have. You can contact our experienced California Criminal and Immigration attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

In November 2016, California voters overwhelmingly passed Proposition 57 (64% to 35%) to enhance public safety, stop the revolving door of crime by emphasizing rehabilitation, and prevent Federal Courts from releasing inmates.

Under Prop 57, CDCR incentivizes inmates to take responsibility for their own rehabilitation with credit-earning opportunities for sustained good behavior, as well as in-prison program and activities participation. Prop 57 also moves up parole consideration of non-violent offenders who have served the full-term of the sentence for their primary offense and who demonstrate that their release to the community would not pose an unreasonable risk of violence to the community. These changes will lead to improved inmate behavior and a safer prison environment for inmates and staff alike, and give inmates skills and tools to be more productive members of society once they complete their incarceration and transition to supervision.

Lastly, Prop 57 allows Judges, not Prosecutors, to decide whether to try certain juveniles as adults in Court. Prop 57 sought to restore Juvenile Court Judges’ authority over juvenile offenders by allowing Juvenile Court Judges to determine whether or not juveniles aged fourteen and older should be prosecuted and sentenced as an adult, repealing California Proposition 21, which was passed in March 2000.

What Does Prop 57 Mean For Existing Sentences and Parole Eligibility?

There are three main provisions under Prop 57, two relating to adults and one to juveniles:

Adults:

1. Parole Eligibility Changes

2. Credit Awards Changes

Juveniles:

3. Direct Filing Eliminated

Offenders who commit multiple crimes against multiple victims will be eligible for release at the same time as offenders who only committed a single crime against a single victim.

• Repeat offenders will be eligible for release after the same period of incarceration as first time offenders.
• Offenders whose sentence was enhanced for especially egregious conduct will be eligible for release at the same time as those who did not engage in the egregious conduct.
• CDCR will have unlimited authority to award credits to all inmates, in excess of the current 15%, 20% and 50% conduct credit limitations.
• Juvenile offenders who commit violent crimes like murder, rape and carjacking cannot be filed on as adults. They must be filed on in Juvenile Court and can only be found unfit by a Judge.

What Will Happen To My Conviction And Sentence Under Prop 57?

Prop 57 allows for parole consideration to any person convicted of a non-violent felony offense and sentenced to state prison after completing the full term for his or her primary offense. The full term for the primary offense means the longest term of imprisonment imposed by the Court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. This can mean drastically reduced eligibility periods for those facing long consecutive sentences.

Under Prop 57, inmates who comply with the rules, avoid violence, and perform duties assigned to them, are eligible to earn Good Conduct Credits. Inmates who participate in approved rehabilitative and educational programs shall be eligible to earn Milestone Completion Credits, Rehabilitative Achievement Credits, or Educational Merit Credits. Inmates who perform a heroic act in a lifethreatening situation may be eligible to receive the Extraordinary Conduct Credits.

What will the expanded credit-earning opportunities do for inmates? Credits earned for good conduct and rehabilitative and educational achievements can advance an inmate’s release date if sentenced to a determinate term, or advance an inmate’s initial parole hearing date if sentenced to an indeterminate term with the possibility of parole. Credit-earning opportunities are available to all inmates. What Do I Do Now?

If you or a relative or friend is currently in custody or served a sentence or consecutive sentences for a non-violent felony offense including theft, grand theft, grand theft auto, grand theft firearm, receiving stolen property, forgery, fraud, possession of a controlled substance, you may be eligible for relief; even if you have been denied parole. It is critical you consult with an experienced and qualified Criminal Defense Lawyer. Our California team has years of experience researching and preparing strategies for parole under Prop 57. Contact us now for a Free Consultation.

On September 30, 2018, Governor Jerry Brown signed into law Senate Bill 1437. SB 1437 became known as the Felony Murder Rule effectively changing the rules for how California charges felony murders.

Prior to SB 1437, California law allowed a defendant to be convicted of first-degree murder in the commission of a felony even if the defendant did not intend to kill the victim or did not know a murder took place. This means that in the commission of a residential burglary, for instance, if someone were killed as a result of the incident a getaway driver would be charged with and convicted or murder even if they had not stepped into the scene of the crime. This former broader law meant hundred of convictions of murder for individuals who never intended on seeing someone harmed in the commission of a felony act.

Under the new Felony Murder Rule, a person can only be convicted of murder if he killed a person in the commission of a felony, aided and abetted the killing, was a major participant in the killing, or the victim was a peace officer engaged in the performance of his duties. SB 1437 is retroactive, meaning it applies to defendants that were accused and convicted under the old law and who are now eligible for relief including appeal and resentencing.

How Do I Appeal A Sentence Under SB 1437?

Like most forms of post-conviction relief, appealing a sentence under SB 1437 requires careful processing and adhering to the rules so that the appeal is properly and timely carried out. The first step in the appeal process is filing a petition. This petition must be carefully prepared and filed in the sentencing court with service (or notice made) to the agency that prosecuted the petitioner and the attorney that represented the petitioner.

In order for the petition to be properly completed it must include a declaration from the petitioner showing he is eligible for a sentence reduction by meeting three conditions; showing he was prosecuted for murder under a natural and probable consequences theory (NPC theory) meaning that the murder was found to be a natural and probable consequence of a felony act, he was convicted of first-degree or second-degree murder following a trial or accepted such charges as a plea offer, and that he would not have been convicted of murder under California’s new Felony Murder Rule.

Once the petition has been received and accepted, that is that the petitioner has shown he is eligible for a sentence reduction, then a hearing is set to resentence. At this hearing it is not the responsibility of the petitioner to prove that his sentence should be reduced, rather it is the responsibility of the prosecutor to prove beyond a reasonable doubt that the petitioner’s sentence should not be reduced.

If the prosecutor cannot prove this, then the allegations and enhancements on the conviction are vacated and the petitioner is resentenced on the remaining charges. The resentencing Judge will give credit for time served and may order the petitioner receive parole supervision for up to three years following the completion of the sentence. What Do I Do Now?

If you or a relative or friend is currently in custody serving a sentence for felony murder you may be eligible for relief. It is critical you consult with an experienced and qualified Criminal Defense Lawyer. Our California team has years of experience researching, strategizing, and preparing petitions under SB 1437. Remember, a resentence and immediate release is possible. Contact us now for a Free Consultation.

On November 4, 2014 California voters passed Proposition 47, known as the Criminal Sentences, Misdemeanor Penalties, Initiative Statute. This referendum – also called the Safe Neighborhoods and School Act – recategorized some nonviolent offenses as misdemeanors rather than felonies. These offenses included crimes of theft, fraud, and drug possession.

The objective of Prop 47 was to reduce overcrowding in the state’s prison system and provide an opportunity for nonviolent offenders to obtain release and rehabilitation services. Monies saved as a result of Prop 47 would be allocated toward education and dropout prevention, mental health treatment, and drug abuse programs. All meant to keep offenders out of the prison system.

What Does Prop 47 Mean For Existing Sentences?

Prop 47 affects both future convictions and retroactively covers offenses already sentenced. A petition for resentencing would be necessary and previous felony offenses (or wobblers) would be reduced to misdemeanors and resentenced. This reduction of the punishment for the crime is referred to as a commutation or commuted sentence.

Prop 47 has already reduced California’s state prison population by tens of thousands. In the first year alone since passing 4,700 offenders were resentenced and released.

The original deadline for petitions to resentence under Prop 47 was November 4, 2017; however, due to the number of petitions made and eligible sentences, Governor Jerry Brown extended the deadline to November 4, 2022.

What Will Happen To My Conviction And Sentence?

Appealing your sentence under Prop 47 can be done by those currently serving a sentence as well as those who have completed their sentence. The process begins by filing a petition to modify the sentence (resentencing). The Judge will determine whether the conviction would have been a misdemeanor under Prop 47, grant the petition for resentencing by changing the conviction to a misdemeanor, and (if you are still serving a sentence) make an immediate reduction to your sentence. Typically resulting in release from incarceration.

For those who have already completed their sentence, the reduction from a felony to a misdemeanor can restore your rights to serve on a jury or the armed forces, improve your employment opportunities (given that you no longer have to disclose you have been convicted of a felony), and allow you to pursue professional licensure (such as insurance or real estate). Overall, the reduction of the offense from a felony to a misdemeanor means a better quality of life and future outlook.

What Do I Do Now?

If you or a relative or friend is currently in custody or served a sentence for a felony offense including theft, grand theft, grand theft auto, grand theft firearm, receiving stolen property, forgery, fraud, possession of a controlled substance, you may be eligible for relief. It is critical you consult with an experienced and qualified Criminal Defense Lawyer. Our California team has years of experience researching and preparing petitions under Prop 47. Remember, not only is the relief immediate on a commuted sentence but the impact on your future from seeing the felony reduced is significant. Contact us now for a Free Consultation.