• The information provided to the government was not known to the defendant until more than one year after sentencing;
• The information was given within one year of sentencing, but the information that was provided did not become useful to the government until more than a year after sentencing; or
• The usefulness of the information provided could not have been reasonably anticipated by the defendant until more than a year after sentencing and the information was provided promptly after its usefulness became apparent to the defendant.

Courts have held that, generally, the government is under no obligation to file a substantial assistance motion regardless of how useful the information provided was. However, there are a couple of important limits to the government’s discretion, where a refusal to file a motion can be reviewed by the court:

• The first exception is if the government has obligated itself to bring such a motion under the terms of its plea agreement with the defendant; or
• The government’s refusal to file a substantial assistance motion is based on an unconstitutional motive like race or religion.

That is why it is important to work with an experienced criminal defense attorney who can protect your interests and make sure that the substantial assistance you provide works to benefit you. The attorneys at the Justice Firm have decades of experience and will work not only to ensure that the assistance you provide benefits you, but will work to ensure that you and your family are protected from retaliation or further criminal exposure.

One important part of Rule 35(b) is that, once the government files a substantial assistance motion and recommends a sentence reduction, courts are not bound by the government’s recommendation. Under Rule 35(b), courts have broad discretion in determining the new sentence, which allows them to reduce a sentence even below the statutory minimum sentence for the crime.

When deciding a Rule 35(b) motion, courts employ a two-step analysis. First, a judge will determine whether the defendant has indeed provided substantial assistance. The assistance cannot be minimal, it has to be substantial and more importantly the government has to consider it to be substantial. The second part of the court’s analysis is deciding the extent to which an assisting defendant’s sentence should be reduced.

In exercising their discretion, courts consider non-assistance factors in determining the extent of sentence reduction. Such factors include defendant’s character prior to sentencing, any presentence cooperation, the post-conviction record, and current health condition among others.

As already mentioned, while the government has broad discretion and is under no obligation to bring a substantial assistance motion, an experienced criminal defense attorney can negotiate the cooperation on behalf of the client. If you would like to explore the prospects of reducing your sentence or have information that can be useful to the government, you should speak to one of our highly skilled and compassionate federal criminal defense attorneys at the Justice Firm, who understand how to best protect their clients’ interests and make sure the government utilizes the information provided.

If you or a loved one is facing criminal sentencing or has been sentenced already, you can contact our criminal defense 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 1987, in McClesky v. Kemp, the U.S. Supreme Court limited courts’ ability to address systemic discrimination by requiring defendants to prove purposeful discrimination by more than statistical disparities. Unfortunately, the Court failed to recognize the reality that most systemic biases are unintentional and throughout the years have been more damaging than occurrences of outright racism. As a result, the decision by the Court left thousands of defendants without recourse.

Fortunately, as part of the ongoing effort to rectify the troubling and devastating effects that California’s laws and policies have had on minority communities and to redress the McClesky decision, in 2020, the State legislature passed AB 2542, which prohibited the state from seeking a conviction or a sentence on the basis of race, ethnicity, or national origin. Recognizing that AB 2542 did not go far enough, in 2022, the California legislature passed AB 256 or the Racial Justice Act for All. The new bill provided a staggered timeline for defendants with cases in which final judgment was entered before January 1, 2021, to seek relief. Moreover, AB 256 expands the type of evidence that defendants can present and requires courts to consider the totality of the evidence and not only statistical evidence.

According to the timeline provided in AB 256, starting on January 1, 2024, any person who is currently serving a sentence in state prison or county jail can file a habeas corpus petition based on a claim under AB 256, which was codified under Penal Code section 745. Moreover, AB 256 amended Penal Code section 1473, not only to allow for habeas corpus petitions based on racial discrimination claims, but to also allow defendants with pending petitions to amend their existing petitions with a claim that their conviction or sentence was the result of a violation of the new Penal Code section 745(a).

The process of challenging a conviction or a sentence under AB 256 is going to be a complex one. Starting on January 1, 2024, defendants who are currently in custody will be able to file a petition for writ of habeas corpus. In order to obtain a hearing, a defendant is required to make a prima facie showing that there was a violation of PC 745(a). This means that the petition has to put forward facts that, if true, would establish a substantial likelihood that a PC 745(a) violation had occurred.

At the evidentiary hearing, the burden of proof will be on the defendant to show by a preponderance of the evidence that a violation had occurred. However, the defendant will not be required to prove intentional discrimination. Furthermore, if the defendant shares an ethnicity, race, or national origin with more than one group, then he or she can produce aggregate evidence to prove that there was a violation. If the court finds that a violation had indeed occurred, the court is mandated to impose a remedy. While the exact remedy is going to be within the discretion of the court, the possible post-judgment remedies include vacating the conviction or sentence and ordering new proceedings; modifying the judgment to a lesser offense; or vacating the sentence and imposing a new one, which cannot be greater than the one previously imposed.

AB 256 provides an additional avenue for defendants to seek post-conviction relief. The experienced and compassionate post-conviction attorneys at the Justice Firm are ready to answer your questions and evaluate your case to determine if you qualify for post-conviction relief under this or any other law. If you or a loved one wants to know more about this law, or if you think that AB 256 impacts your case, contact our California appeals 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 California, an individual’s criminal record is kept until a person reaches 100 years of age, even though most people with a criminal record had long paid their debt to society. The effects of a criminal record have always been enormous, but this is truer then ever in today’s world where the use of background checks is more widespread than ever. As a result, a quarter of the state’s population is facing numerous barriers to building and having a decent life. The presence of a criminal record prevents people from entering certain careers, obtaining housing, long-term employment, and participating fully in civic life. Most notably, the consequences of a criminal record have historically affected minority communities disproportionately and have been a leading driver of recidivism and perpetual poverty.

For years now, California has been at the forefront of Criminal Justice Reform and has been adopting numerous measures in an attempt to rectify the effects of the tough on crime policies of the past. As part of the ongoing efforts to reform that the California policymakers have embarked on, and recognizing the devastating consequences a criminal record can have on a person’s ability to reintegrate into society, they passed SB 731. Governor Newsom signed the bill into law on September 29, 2022, and the bill became effective on July 1, 2023.

Prior to SB 731 coming into effect, the state’s laws allowed for people to apply for expungement of certain misdemeanor and felony convictions. Not only was expungement limited in its application, but also, the conviction was not entirely erased from a person’s record. SB 731 is a landmark law that completely changes the approach to conviction sealing in California and is the most expansive conviction sealing law in the country.

Under SB 731, the California Department of Justice is required to review their databases on a monthly basis and clear all records of eligible individuals automatically. Eligibility varies depending on the type of arrest or conviction. Generally, all misdemeanor and felony charges that are dismissed have to be cleared immediately after dismissal. With regards to arrests and convictions, the automatic relief eligibility varies:

• For misdemeanor arrests where no charges are brought, the automatic record clearance is one year after the arrest, whereas for felony arrests with no charges brought, three years after the arrest.
• For misdemeanor convictions where probation is granted, a person is eligible for automatic record clearance immediately after completion of probation. And if no probation is granted, one year after completion of the case.
• For felony convictions, where probation is granted, immediately after probation is completed. For all other non-violent, non-serious, non-registerable felony convictions, a person will be eligible to have their record automatically cleared 4 years after sentence completion, if there have been no additional felony convictions in the 4-year period.

Additionally, any individual with a felony conviction is eligible to discretionary relief and can petition the court to withdraw their plea and have their case dismissed after completion of their sentence and if certain other conditions are met. If the felony conviction resulted in a sentence to state prison, the relief is available only if the conviction did not result in a requirement to register as a sex offender.

Finally, it is worth noting that nothing in SB 731 restores an individual’s gun rights that were taken away due to a felony conviction or a misdemeanor domestic violence conviction. Despite SB 731, the only way to regain your rights to own or possess firearms is through a gubernatorial pardon.

While under SB 731 most criminal records are supposed to be automatically cleared when they become eligible, there are still instances where a person will have to petition the court in order to have their record cleared. At the Justice Firm we fight zealously to protect our clients’ rights and we believe that everyone is entitled to have 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 the experienced California Criminal attorneys at the Justice Firm today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

As part of the ongoing effort to fight the biases and racial discrimination that have been prevalent in our criminal legal system, in 2020, the California legislature passed AB 2542, or the Racial Justice Act, which came into effect on January 1, 2021. The law prohibited the state from obtaining or seeking to obtain a criminal conviction or imposing a sentence on the basis of race, ethnicity, or national origin. The landmark law was a step in the right direction and was welcomed by criminal justice reform advocates.

Prior to the passing of AB 2542, proving racial biases was almost impossible. In the 1987 decision McClesky v. Kemp, the U.S. Supreme Court imposed an unreasonably high burden on defendants to prove racism in criminal cases. In short, the Court required defendants to prove intentional discrimination and held that statistical disparities are not enough to show a constitutional violation.

Unfortunately, for all the good AB 2542 aimed to do, it still left thousands of people behind, as it applied only to prospective cases. That issue was rectified with the passing of AB 256, which Governor Newsom signed into law on September 29, 2022. The new Racial Justice Act for All extended the protections of AB 2542 to people, who had been impacted by unfair, biased, and discriminatory convictions or sentences prior to January 1, 2021, and it applies to juvenile convictions as well.

AB 256 gives a new opportunity for people to seek post-conviction relief. If you want to know more about this new law or want to learn if you qualify, our post-conviction attorneys are here to help. The post-conviction attorneys at the Justice Firm are ready to answer your questions and evaluate your case to determine if you qualify for post-conviction relief under this or any other laws.

AB 256 came into effect on January 1, 2023. However, the new law does not apply to everyone immediately, but rather, it creates a phased-in timeline for defendants to seek post-conviction relief:

• January 1, 2023 – defendants who have been sentenced to death or individuals facing deportation;
• January 1, 2024 – defendants who are incarcerated for a felony;
• January 1, 2025 – other individuals who have felony convictions, which were entered after 2015;
• January 1, 2026 – all other individuals with a felony conviction.

The new Racial Justice Act for All not only will extend protections and provide an avenue of relief for countless of people, but it also broadens the type of evidence that a defendant can present. Under the original act, in order for a defendant to establish that a conviction or a sentence was unlawfully imposed on the basis of race, national origin, or ethnicity, he or she was required to provide statistical evidence or aggregate data. AB 256 now allows a defendant to present nonstatistical evidence and the new law requires judges to consider the totality of the evidence.

In order to prove a violation under the new law, upon making a prima facie case of a violation under the law, a defendant is entitled to hearing where he or she has to prove by a preponderance of the evidence that either:

• “The judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin” or
• During the course of the defendant’s trial, one of the above listed persons “used racially discriminatory language about the defendant’s race, ethnicity, or national origin or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful” or
• The defendant was charged or convicted of a more serious offense than similarly situated individuals of a different race, ethnicity, or national origin and prosecutors in the county “more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race, ethnicity, or national origin” or
• A longer or more severe sentence was imposed on the defendant than on similarly situated individuals and “longer or more severe sentences were more frequently imposed for that offense on people that share the defendant’s race, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins.”

Explicit and implicit systemic racial biases, inequality, and discrimination have been present in our criminal justice system since its inception. The Racial Justice Act for All brings us one step closer to rectifying the injustices and the significant racial disparities that exist in California’s convictions and sentencing history.

The process of challenging a conviction or a sentence under AB 256 is complex and it is important to work with experienced and compassionate attorneys. At the Justice Firm, we know that the attorney-client relationship is an important aspect of your legal journey and our highly skilled and reliable attorneys are here to help and answer any questions you might have. If you or a loved one has questions about this law, or if you think that AB 256 could impact your case, contact our California appeals attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

Needless to say, the end result of the STEP Act has been devastating and has caused an immeasurable damage to entire neighborhoods and communities. For defendants, a gang member designation can have a very negative impact through their entire interaction with the criminal system, including pretrial release, sentencing, incarceration, parole, reentry, and for non-citizens an almost guaranteed deportation.

In 2020, Governor Newsom commissioned the Committee on Revision of the Penal Code to examine the California Penal Code and to issue recommendations for reform. According to the Committee’s 2020 report, the STEP Act has been applied inconsistently and has disproportionately affected communities of color. Furthermore, the report pointed out that while between 2011 and 2019 California reduced its prison population, during the same period, the number of inmates who were serving gang enhancements increased by approximately 40 percent. Moreover, according to the report, in Los Angeles, more than 98 percent of defendants with gang enhancements were people of color.

The report went further in pointing out that gang enhancement evidence are regularly grouped together with evidence of the underlying charges, which makes those evidence not only unreliable, but highly and unfairly prejudicial to a jury. In addition, because of the lax standards of proof, many people have unjustly been lumped into gang networks simply because of their families or communities. Finally, there have been no evidence to show that the wide imposition of gang enhancements has been an effective deterrent to gang related crimes or violence.

As a result of the report and other studies, the California legislature passed Assembly Bill 333 or the STEP Forward Act of 2021, which came into effect on January 1, 2022. The purpose of AB 333 was to address the inequities caused by the STEP Act and its subsequent amendments by redefining certain terms and making the standards for applying gang enhancements more rigorous, so that they are used only when it is necessary and fair. The most important changes in the law include:

• Removing certain crimes from the list of crimes eligible for gang enhancement charge. The new law removes looting, felony vandalism, and certain identity fraud violations from the list of offenses that can be used to establish a “pattern of criminal gang activity.”
• Redefining a “pattern of criminal gang activity.” The new law requires that in order to form a pattern of criminal gang activity, the crimes committed must be shown to have commonly benefited a criminal street gang and that benefit has to be more than reputational, such as financial gain, retaliation, gang rival targeting, or intimidating witnesses.
• Moreover, AB 333 explicitly prohibits the use of the crime being prosecuted to prove a pattern of criminal activity.
• Finally, the STEP Forward Act added Section 1109 to the California Penal Code, which requires that, if requested by the defense, the underlying offense must be proven first, and only if there is a finding of guilt, there should be further and separate proceedings on the truth of the gang enhancement.

At the Justice Firm, our highly skilled and experienced attorneys continuously follow the new developments in California’s laws and are always prepared to fight for our clients for lesser penalties, sentence reductions, and appeal of sentences or convictions.

We understand that the attorney-client relationship is an important aspect of your legal journey and our highly knowledgeable and compassionate attorneys are here to help and answer any questions you might have. If you or a loved one has questions about this law, or if you think that AB 333 could impact your case, contact our California criminal attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

Throughout the years, many immigrants in California have entered a plea or have been convicted at trial, without being properly informed of the immigration consequences of a criminal conviction. And for most non-citizens, the immigration consequences of a conviction only come to light when they find themselves in immigration court facing deportation, which, in many instances, can be years after they had completed their criminal sentence. In most of those cases, the only way for a non-citizen to avoid deportation and to remain in the United States is to challenge their criminal conviction. However, because California law did not provide a post-conviction relief for people who were no longer in custody, many people have been unjustly deported, or at best, have been stuck in the backlogged immigration system for years.

Recognizing that there are a large number of immigrants in California who have already finished serving their sentences, but who have not received the proper legal advice about the impact their convictions could have on their immigration status, the California legislature enacted Assembly Bill 813, which was codified as PC 1473.7, and became effective on January 1, 2017. Essentially, the new law gave people who were no longer in custody the ability to challenge their criminal convictions and vacate their judgments. Initially, the law was limited to convictions that were the result of a plea of guilty or nolo contendere. However, in 2021, the state legislature passed AB 1259, which amended PC 1473.7. As a result, as of January 1, 2022, the law now also provides a post-conviction relief for non-citizens who were convicted at trial.

A PC 1473.7 motion to vacate can be filed on two grounds: (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, or (2) if evidence of actual innocence had been discovered. Notably, the prejudicial error ground for filing a successful motion to vacate does not require a finding of ineffective assistance of counsel. Moreover, in order to establish prejudice, the moving party does not have to prove that he or she would have obtained a more favorable result in the absence of the error.

PC 1473.7 includes a timing requirement that such motions be filed with “reasonable diligence” after receiving a notice to appear in immigration court, other notice from immigration authorities, or after a notice of final removal order, whichever is later.

All PC 1473.7 motions are entitled to a hearing, and if the moving party successfully establishes by a preponderance of the evidence that he or she is entitled to a relief, the motion will be granted, and the conviction will be vacated and erased from the person’s criminal record. However, that does not guarantee that the case will be dismissed. The case will only be dismissed, if the prosecution agrees to dismiss it. In the alternative, the prosecution may offer a different plea, and if not, the case will proceed to trial.

If an individual has a criminal record, obtaining a permanent legal status or citizenship is extremely difficult, if not impossible. 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 essence, AB 3234 gives judges the power to grant a diversion to a defendant in a misdemeanor case and to postpone the case for up to 24 months. Importantly, under this law, a judge has the power to “divert” a case, even if the prosecuting attorney objects. The offer of a diversion is entirely within a judge’s discretion, which means that the defendant has to show good reasons for why he or she is worthy of being granted a diversion. In considering whether to grant judicial diversion, judges would take into account defendant’s history, character, background, and the specific facts of the case and every diversion will be tailored to the specific circumstances of each case and the crime charged.

A defendant would be deemed to have successfully completed the judicial diversion program when they complete all court-ordered terms, conditions, and programs, which can include community services, treatment programs, anger management or domestic violence classes among others. In addition, during the duration of the program a defendant has to comply with any court-ordered protective or stay-away orders, or orders prohibiting firearm possession. Finally, a defendant has to make full restitution to the victim. However, the law specifically states that a defendant’s inability to pay restitution due to indigence cannot be grounds for denial of diversion or a finding of failure to comply with the terms of the diversion.

Upon successful completion of a diversion program, the court is obligated to dismiss the case against the defendant. Not only would the case be dismissed, but also the arrest upon which the diversion was ordered will be deemed to have never occurred. In practice, what that means is that following a dismissal, in response to any question about an individual’s criminal history, a defendant can legally say that they have never been arrested. The only exception is, that if a defendant applies for employment as a peace officer, the Department of Justice can still access the arrest information, and if asked directly, a defendant has to answer that he or she has been arrested.

It is worth noting that AB 3234 specifically disqualifies certain offenses from eligibility under this diversion program, including registrable sex offenses, domestic violence offenses, and stalking offenses. Moreover, although the new law is silent on DUI misdemeanors, DUI crimes are nevertheless specifically excluded from any diversion-type programs pursuant to other laws.

Even with the above listed exceptions, the judicial diversion program does cover an extensive list of misdemeanor criminal offences. Some of the most common crimes that are eligible under the program include simple assault, simple battery, petty theft, vandalism, possession of drug paraphernalia, public intoxication, disturbing the peace, possession of a controlled substance, trespass, and much more.

A criminal record can and does have a long-term effect on an individual’s life, and a criminal conviction can lead to very harsh consequences including the retaining of or obtaining employment, a professional license, or certain benefits, and for non-citizens, it can have a devastating impact on their immigration status.

The Misdemeanor Diversion Program gives defendants a chance to have their misdemeanor cases dismissed and to avoid all the negative consequences of an arrest or conviction. At the Justice Firm, we understand the value of a solid attorney-client relationship, and are ready to work with you to achieve the best outcome possible.

If you or a loved one has been arrested and would like to know more about the judicial diversion program or any other matter, our highly skilled and reliable attorneys are here to help and answer any questions you might have. Our criminal defense attorneys have decades of experience representing individuals in all misdemeanor and felony cases and you can contact them today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

Fortunately, in light of the adverse immigration consequences noncitizens face, some district attorneys are starting to adjust their offices’ immigration-related policies, including the Los Angeles District Attorney, George Gascon. On December 6, 2022, Mr. Gascon issued a new special directive outlining the new immigration policies of the LA District Attorney’s Office, which, among other things, is aiming to address the overly punitive consequences accused noncitizens could face.

First, according to the new policy, prior to when a charging decision is made, any person who is under investigation or their attorney, can present information demonstrating the potential adverse immigration consequences that could follow. In such cases, all charging determinations by the DA office should be made with the goal of avoiding or mitigating any adverse consequences a charge could have, and if there are possible alternatives to charges being filed, the DA office should pursue those alternatives. In addition, the new policy encourages prosecutors to expand the use of pretrial diversion programs that do not require an admission of guilt.

Second, in line with section 1016.3 of the California Penal Code, which requires that in all plea negotiations, the prosecution has to consider the avoidance of adverse immigration consequences as a factor in reaching a resolution, the new directive makes clear that “it is in the interest of justice to endeavor to avoid or mitigate immigration consequences of criminal convictions whenever possible.” Accordingly, the new directive lays out a comprehensive plan for plea bargaining, including:

• Allowing for flexibility in sentencing, including splitting sentences across counts, as well as flexibility in sentencing for a probation violation; and
• Avoiding sentence enhancements that would turn a neutral offense into an immigration damaging one.

Furthermore, the new directive lays out the Office’s policy on post-conviction relief. In 2016, the California legislature passed section 1473.7 of the California Penal Code, which created a vehicle for noncitizens, who are no longer in criminal custody, to seek post-conviction relief by allowing them to move to vacate prior convictions when there is a “prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.” In accordance with this, the new immigration policy directs prosecutors to concede without delay all motions to vacate, where it is clear from the record that a defendant was not able to comprehend, defend against, or knowingly accept the immigration consequences of a plea or a sentence.

Moreover, the new policy lists several type of cases in which it can be expected that a motion to vacate would not be opposed by prosecutors. These cases include:

• Motions to bring a sentence down from 365 to 364 days;
• Proposition 36 cases, where the defendant has completed the drug treatment diversion program;
• Post-plea deferred entry of judgment cases;
• Marijuana cases, which have been dismissed as part of the mass cannabis record clearance;
• As well as cases where the defendant has been in the military and has been honorably discharged.

In general, the new policy makes clear, that regardless of the type of case, in all motions to vacate based on immigration consequences, prosecutors should consider all mitigating factors, including whether the defendant was a juvenile; how old the conviction is; the severity of the crime and the facts of the case; as well as the defendant’s character, including family history, work history, and contributions to the community. And, in cases where it is determined that a different resolution would have been reached, if the adverse immigration consequences had been raised initially, the prosecution should stipulate to a motion to vacate.

At the Justice Firm, we know that the attorney-client relationship is an important aspect of your legal journey and we work hard for all of our clients to achieve the best outcome possible.

If you or a loved one is facing criminal charges, or is seeking post-conviction relief, or needs help with any criminal matter, our highly skilled and reliable 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.