Post-Conviction Motions

As we know, the criminal justice system in California is not perfect. For a variety of reasons, an innocent person might be convicted of a crime they did not commit. Some innocent people are currently serving time in prison.

Even after a conviction at the trial level, the defendant can file a direct appeal. The direct appeal typically looks at errors that can be found on the face of the record or within the four corners of the record on appeal.

After the direct appeals are exhausted, the only other way to gain relief is by filing and litigating post-conviction motions including writs of habeas corpus or motions to vacate a judgment.

The criminal defense attorney might need years to investigate these crimes because of the time it takes to locate all of the discovery materials or find exculpatory evidence that was never provided to the defense before trial or at trial.

Attorney for Post-Conviction Motions in Ventura, CA

A person has a right to file a motion for post-conviction relief after being convicted of a crime, including motions to vacate or set aside a judgment and writs of habeas corpus.

When seeking post-conviction relief, the first step is obtaining all of the post-conviction discovery materials from the prosecutor’s office, the criminal defense attorney who tried the case at the trial level, and the clerk’s office.

The attorney who handles the post-conviction motion must review this material carefully and sometimes locate materials that were never previously provided.

At Jay Leiderman Law, we help clients convicted at trial of serious felony and misdemeanor charges with motions for a new trial, direct appeals, or motions for post-conviction relief.

Call us today at (805) 654-0200 for a free consultation. We can help you file a post-conviction writ of habeas corpus or a motion to vacate a judgment.

Overview of Post-Conviction Law in California

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Types of Post-Conviction

There are different post-conviction relief efforts, such as expungement, obtaining a writ of habeas corpus, and many more. Under Penal Code 1473.7, California law states that a person who is no longer in criminal custody can file a motion to dismiss or overturn a conviction or sentence. Nevertheless, an attorney can file for a post-conviction motion, although your trial and sentencing have happened, and if you’re currently serving time.

For many being able to dismiss or overturn a conviction is life-changing – for example, non-U.S. Citizens who have been charged or convicted of intimate partner violence or “aggravated felony” can encounter severe consequences. Therefore, some non-U.S. citizens are faced with deportation, not being able to become a U.S. citizen, not being eligible to apply for permanent residency or adjust your status.

  1. Appeals – The purpose of a direct appeal is to demonstrate that a “prejudicial error” was made during your case. Thus, affecting the outcome of the trial, providing a second opportunity that can result in a conviction being overturned, a new trial, or an adjustment to your sentence.
  2. Expungement (Penal Code 1203.4) – Defendants of a misdemeanor or felony can remove their conviction from their criminal record. However, the defendant could not have served time in prison, is not currently being charged with any crime, is not on probation when filing for expungement, and has completed the terms of their sentence. Furthermore, most sex-crime related offenses and convictions for particular vehicle code violations do not qualify to be expunged.
  3. Prop 47 Resentencing – Proposition 47 is a law that was passed in November 2014. This proposition allows for specific criminal charges to be reduced or reclassified from felonies to a misdemeanor. Nevertheless, some exceptions include defendants who have been convicted of particular sex-related crimes, including any individual who is required to register as a sex offender, and other severe violent crimes (e.g., murder).
  4. Prop 64 Resentencing – Proposition 64 became effective in November 2016. The proposition allows the reduction or eliminates the criminal penalties for most marijuana offenses. In some cases, the proposition grants prior marijuana convictions to be reduced or dismissed.
  5. Certificates of Rehabilitation (Penal Code 4852.01) – Individuals who have served time in state prison, this certification allows for the restoration of many political or civil rights (e.g., being able to obtain a professional license). The certification does not dismiss your conviction, nor does it seal your record. However, it provides the opportunity of not being discriminated against because this is a court order that states the court deems the individual rehabilitated.
  6. Governor’s Pardons – On one hand, this pardon is granted by the governor and forgives the individual of previous crimes and provides the restoration of some rights (e.g., voting). In some cases, it can terminate an active sentence or probation. On the other hand, the pardon does not seal or dissolve your criminal record.
  7. Habeas Corpus – Under California Law, the writs of habeas corpus allows for an individual who is in custody to challenge their imprisonment.

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Common Reasons for Post-Conviction Motions

  • File to overturn the conviction because of “ineffective assistance of counsel” – In other words, the defendant pled guilty because he/she was not adequately informed of the consequences of a conviction or the lawyer of the defendant was incompetent.
  • Reducing a sentence to a misdemeanor – Under Prop 47 and Prop 64, some criminal offenses that were once charged as a felony can be reduced to misdemeanors. For instance, Proposition 64 reduces criminal penalties, resentences, or dismisses prior convictions for specific marijuana-related offenses for persons who are twenty-one (21) years old or older, and juveniles.
  • Resentencing – For individuals who were convicted of a crime and are currently serving a sentence
  • The state or federal legislation has rewritten a law – For instance, in the state of California, the voters have reinstated Proposition 47, changing specified crimes from felonies to misdemeanors.
  • New Evidence
  • Evidence of dishonesty or misconduct from the juror
  • Misconduct of the prosecution

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Four Types of Post-Conviction Discovery Material

As explained in Davis v. Superior Court (2016) 1 Cal. App. 5th 881, 886, to obtain post-conviction relief, an attorney might seek to show their client’s actual innocence by seeking out the following types of evidence:

  1. evidence the prosecution did provide at time of trial but that has since become lost to the defendant;
  2. evidence the prosecution should have provided at the time of trial because it came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence;
  3. evidence the prosecution should have provided at the time of trial because the defense specifically requested it at that time and was entitled to receive it; or
  4. evidence the prosecution had no obligation to provide at the time of trial absent a specific defense request, but to which the defendant would have been entitled at the time of trial had the defendant specifically requested it.

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Obtaining Post-Conviction Discovery Material in California

The term “post-conviction discovery” is generally understood as the provision of materials and documents provided to the defendant during the criminal case.

Your attorney for a post-conviction writ of habeas corpus or a motion to vacate a judgment must first obtain the discovery materials from the criminal defense attorney who represented him or her at the time of the conviction.

The “discovery materials” in the post-conviction context includes the materials in the possession of the prosecution and law enforcement authorities to which the defendant would have been entitled to at the time of trial.

The attorney for the post-conviction motion must also obtain access to physical evidence relating to the investigation, arrest, and prosecution of the defendant, sometimes by seeking a court order to obtain access.

After the writ or motion for post-conviction relief is filed, your attorney can seek a court order to be provided access to physical evidence for the purpose of examination, including, but not limited to, any physical evidence relating to the investigation, arrest, and prosecution of the defendant.

To obtain the court order, the post-conviction attorney must show good cause to believe that access to physical evidence is reasonably necessary to the defendant’s effort to obtain relief.

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Direct Appeals vs. Post-Conviction Relief

The main difference between a direct appeal and post-conviction is that in an appeal, the court will only review “prejudicial error.” In other words, only what was said and introduced in the initial trial is under review. By contrast, a post-conviction motion will address issues such as new evidence or any concerns that were not clear in the initial trial.

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Additional Resources

Proposition 47 – Follow the link to the Judicial Branch of California Courts, which details an overview of Proposition 47. The website provides information such as eligibility requirements for resentencing under Proposition 47. Under California law, the implementation of the proposition affected three (3) aspects of “felony sentencing laws.” As a result, particular theft and drug-related charges were reduced from felonies to misdemeanors. Furthermore, defendants who are serving a sentence are allowed to petition for a resentencing based on the new provisions. Lastly, defendants that have finished their sentencing have the opportunity to reclassify their convictions.

Ventura County California Appeals – The Superior Court of California in the county of Ventura establish the different types of appeal (e.g., small claims, traffic courts, and other civil suits), the eligibility requirements to make an appeal, the fees, and much more. Filing for an appeal is a time-sensitive process, that can lead to a reverse, modification, or preserve a decision. As stated, before an appeal is different from a Post-Conviction because the defendant nor the prosecutor can introduce new evidence, they are limited to what was said and presented at the initial trial.

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Lawyer for Post-Conviction Motions in Ventura, CA

When an appeal or post-conviction is requested, obtaining an attorney is vital. The importance of having an experienced attorney can help you overturn a conviction or reduce the charges from felony to misdemeanor. Contact Jay Leiderman Law to speak with a qualified professional.

Every second is vital in criminal cases; retaining a lawyer can make a difference. Being found guilty during a trial does not mean that all hope is lost. Many individuals are not aware that they can appeal or dismiss their convictions. Consulting with an attorney is crucial because the process of pursuing an appeal or post-conviction has restraints and every case is different. Call Jay Leiderman Law at (805) 654-0200 to speak with an experienced attorney.


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