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.

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.

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.