Many people assume that if they suffer a criminal conviction, there’s nothing they can do about it.  Thankfully, that’s just not the case. In criminal law, there are two major categories of post-conviction issues:

1)      To un-do a recent conviction (these are things like a motion to withdraw a plea, a motion for a new trial, an appeal from a loss at a jury trial, or a petition for writ of habeas corpus); or

2)      To clean up a past conviction, primarily to improve someone’s record for employment, professional licensing, relief from offender registration requirements, or other personal reasons.

Un-doing a Recent Criminal Conviction

To determine the best way to fight a recent criminal conviction, it’s important to know how the conviction was obtained. There will be a different approach to un-do a conviction based on a plea than there will be if the conviction was based on a verdict following a trial.

Conviction by Plea

If the conviction was the result of a guilty or no contest plea, then the best way to un-do the conviction is a motion to withdraw the plea.  In order to successfully bring the motion, it must be a case in which probation was granted (as opposed to a state prison sentence), and the motion must be filed within six months of sentencing.  It must be based on a showing of “good cause.”  This can be that the plea was entered into as the result of a mistake, inadvertence, or some other factor that shows overreaching.  The most frequently encountered reasons to withdraw a plea are:

  • Failure to properly advise someone of their Constitutional rights;
  • Failure to identify the direct consequences of a plea;
  • Violation of the terms of a plea bargain;

If the plea is successfully withdrawn following a court hearing, then the defendant is returned to their pre-plea status, and has a new opportunity to enter into settlement discussions, file various motions with the court (such as motions to suppress evidence, compel additional discovery, or even dismiss the case), or to have a trial.

If the plea resulted in a state prison sentence, as opposed to probation and a county jail sentence, then the legal vehicle to un-do the plea is a writ of habeas corpus.

Conviction by Trial

If the conviction was the result of a trial, then there are two ways to un-do it: an appeal, or a writ of habeas corpus.  The difference between the two legal vehicles is primarily in what evidence can be considered.

An appeal is triggered by filing a notice of appeal in the trial court.  There are important time limitations to be aware of: 30 days on a misdemeanor trial conviction, and 60 days on a felony trial conviction. For the appeal itself, what the appellate court is chiefly concerned with is whether or not there were legal rulings that were made by the trial judge that made the trial itself fundamentally unfair. What is unique about the appeal is that only the “four corners of the transcript” are considered. This is why it is so important that the court reporter take down every word that is spoken, every question asked and every answer given.  It is because on appeal, it is only the material that is “in the record” or reflected in the transcript that may be considered.

However, there is another way to attack a criminal court trial conviction, and that is the writ of habeas corpus.  In the writ of habeas corpus, it is possible to introduce evidence that was not introduced at trial.  This is the primary legal vehicle to get in material that the trial lawyer missed, or new information that suggests the convicted defendant is actually innocent of the crime. The writ of habeas corpus can be brought in both state and federal court, but the federal court won’t act until the state court remedies have been exhausted.

This is an extremely technical area of the law, and if you are interested in attacking a criminal court conviction, it is vital that you speak to an experienced criminal appeals lawyer.

Cleaning up a Criminal Record

The ability to access data about someone has never been easier. Databases are more robust than ever, and anyone with an internet connection can find out all about you in just a few keystrokes.  Many of us have some past transgressions that are part of that permanent criminal record. If you have some wreckage in your past that you want to clean up, thankfully there are options.

Juvenile Court Convictions

If your conviction originates from juvenile court, it isn’t sealed automatically.  However, it is possible to bring a motion for the sealing and destruction of juvenile court records.  If successful, it is complete relief, meaning that even the law enforcement agencies are ordered to destroy their records concerning the minor, and no one is allowed to know about it.

Arrest But No Conviction, or Found Not Guilty at Trial

There are some cases where a person is arrested, but no formal charges are filed.  Even if a criminal case is rejected for prosecution, the mere fact of the arrest can cause problems for jobs or professional licenses. The remedy for this kind of situation is a motion for a finding of factual innocence and the sealing and destruction of arrest records under California Penal Code section 851.8.  This same code section can used to help clean up the records of someone who has been acquitted after a criminal court trial.  In either case, once factual innocence is demonstrated to the courts satisfaction, the records are sealed and destroyed, and even the fact of the arrest can be removed from the person’s criminal record.

Misdemeanor or Felony Conviction Where Probation Granted

If you were convicted of either a misdemeanor or a felony, and probation was granted (meaning that you were given a sentence ranging from no jail time up to one year in county jail), you are eligible for relief under California Penal Code section 1203.4.  This is sometimes called an “expungement” (but it’s important to know that relief here does not seal or destroy records).  Eligibility for relief under PC 1203.4 requires:

  • That you fulfilled your obligations to the court in the case you are now seeking relief; and
  • That you are not currently on probation (which can mean either that probation naturally expired, OR that the defendant successfully brought a motion to terminate probation early under California Penal Code section 1203.3); and
  • That you have no current criminal cases pending.

If you meet these requirements, then you can obtain relief under 1203.4 of the Penal Code.  What is legally happening is that you are being allowed to withdraw your guilty or no contest plea and enter a plea of not guilty (or, if you were convicted at trial, your verdict of guilty shall be set aside), and the criminal complaint against you is then being dismissed. According to the code section itself, once relief has been granted, you “shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted,” subject to certain limitations.

The limitations, where disclosure of the conviction will still be required even after the PC 1203.4 “expungement” are:

  • An expunged conviction is still “priorable” (which means it can be used against you in a later case for a similar charge);
  • It does not automatically restore the right to own or possess a firearm if that right has been lost;
  • It must be disclosed in response to any direct question contained in an application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

One of the chief advantages of this code section is for a job with a private employer. Private employers are forbidden from asking about misdemeanors that are “expunged” under this code section.

That said, even if a conviction must be disclosed, it is always better to share an “expunged” conviction than one that hasn’t been.  Many employers and licensing agencies look far more favorably on a candidate when this relief has been obtained, since it is the good conduct and reform of a person that justifies this relief being granted.

Felony Probation on a “Wobbler”

There are some crimes that are called “wobblers” – they can be charged as either a felony or a misdemeanor. If you have been convicted of a wobbler, and given probation (which means anywhere from no jail time up to a year in county jail), it is also possible to have the offense declared a misdemeanor under California Penal Code section 17 (b) before it is “expunged” under PC 1203.4.  If you must disclose a prior conviction, it is far better to share an expunged misdemeanor than an expunged felony.

Certificate of Rehabilitation and Governor’s Pardon

For those who have been convicted of a felony and served a term in state prison, the post-conviction options for relief that are available are the certificate of rehabilitation, and the Governor’s pardon.  The distinction between which of these two forms of relief would apply is primarily the residency requirement: In order to obtain relief by way of a certificate of rehabilitation, you must have been a California resident for at least five years prior to the certificate being sought.  The primary reason you may be interested in one of these post-conviction options, besides the peace of mind that comes with them, is to be relieved of the requirement to register as a sex offender under California Penal Code section 290. If the certificate of rehabilitation is granted, many who are required to register will no longer have to do so (California Penal Code section 290.5 lists the crimes which are ineligible for that relief).

If you are concerned with cleaning up your record, or being relieved of any kind of registration requirement, it is essential that you consult with a lawyer right away to see if you are eligible for this.

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