POST-ARREST & CONVICTION RELIEF
Following a conviction, a defendant may appeal the conviction based on various grounds including judicial errors, insufficiency of the evidence, and ineffective assistance of counsel, amongst other reasons. Ms. Azari will review your underlying case to identify what if any reasons exist to make your appeal successful.
An appeal starts with the trial court itself and moves up to higher courts all the way up to appeals courts and Circuit Courts, and could eventually end up with the highest court, the Supreme Court of the state or the Supreme Court of the United States.
As appellate proceedings are expensive and lengthy, Ms. Azari will first evaluate your likelihood of success before frivolously pursuing a claim that may be unlikely to lead to a victory.
Motion for Early Termination of Probation
In certain instances, the court may allow a defendant to terminate their term of probation early. In California, while there are not set criteria warranting early termination, in order to file a successful motion, the defendant must have completed at least half of the term of his/her probation; complied with all other terms such as payment of fines and completion of court-ordered programs; has had no new arrests or convictions while on probation in the instant case; and there must be some unforeseeable reason arising after the sentencing date that explains why the individual cannot continue on probation through its ordered term.
Ms. Azari has won every motion to terminate probation/supervised release early. This is because she evaluates each case on its unique facts and explores the circumstances of each client to determine what basis would best support the argument that the court should terminate probation early.
Motion/Petition to Expunge
(Withdraw & Dismiss Pleas)
Pursuant to Penal Code Section 1203.4, most misdemeanors and many felony convictions can be “expunged” in California.
Contrary to popular belief, an order for expungement does not mean that the conviction will vanish off of a client’s criminal record. Rather, it serves a limited and yet very significant purpose. An order to withdraw and dismiss a plea (expunge), will seal the conviction from visibility in routine and private background checks. As such, while it does not shield the conviction from visibility to law enforcement, the courts, government agencies, and licensing boards, it does shield it from appearing on a background check with a private employer. In fact, even if a conviction has been ordered expunged, the individual has a duty to disclose it to a state licensing board such as the medical board or nursing board.
Even in instances where an expungement does not shield the conviction, it does demonstrate “closure” in the criminal case to the extent that it is a court order that would not be issued unless the defendant has fully complied with the terms and conditions of their sentence.
Many offenses are not eligible for expungement. Ms. Azari will evaluate your prior conviction and the sentence associated with it, to determine eligibility.
Motion/Petition for Finding of Factual Innocence
In California, an individual may be eligible to have their arrest records sealed and destroyed under Penal Code 851.8 PC if:
1) he/she was arrested, but the prosecutor never filed criminal charges;
2) he/she was charged with a crime but had their case dismissed in court; or
3) he/she was acquitted by a jury.
If the individual were convicted of a crime, he/she is NOT eligible for sealing of the arrest records even if the conviction was later dismissed pursuant to the expungement process. This motion is only appropriate for those arrested for, but never convicted of, a crime.
The petition to destroy arrest record under PC 851.8 may be filed up to two (2) years after the later of the following: the date of arrest, or the filing of the accusatory pleading. In some cases, the judge has the discretion to hear motions to seal arrest records beyond these time limits with a showing of good cause.
The process of sealing arrest records usually takes up to ninety (90) days, and depending on the county the arrest occurred in, an attorney may be authorized to appear at the hearing without the petitioner.
Sealing and destroying California criminal records under Penal Code 851.8 PC may be either a one-step or two-step process. Step One involves petitioning the arresting agency, for example Los Angeles Police Department. In case of an arrest whereby subsequently no charges are filed, the first step in seeking relief would be to petition the arresting law enforcement agency.
If the agency agrees that the petitioner was factually innocent, the agency itself will seal the arrest record for three years. Once the three-year period has expired, they will destroy the records. If on the other hand, the law enforcement agency denies the petition, or if they fail to respond within 60 days of receiving the petition, you move on the Step Two which is the filing of the Petition in Court. This is appropriate for those people who either were charged with a crime (and then had the charges dismissed or were acquitted), or were never charged with a crime but cannot get relief from thelaw enforcement agency through the first step described above.
In some cases, when a judge dismisses charges against a defendant or oversees his/her acquittal, s/he will decide to seal the arrest records on his/her own initiative. This tends to occur when the judge believes the defendant is factually innocent.
“Factual Innocence” means that there is no reasonable cause to believe that the arrestee committed the offense for which the arrest was made. In other words, no man of ordinary care and prudence would believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.
The burden of proof if on the petitioner to prove factual innocence, and the judge has wide discretion when deciding whether to grant or deny these motions.
It is therefore prudent for the attorney filing this petition to thoroughly research and present the issues in a timely manner, and to argue the basis fully and thoroughly to the court.
If the motion is granted, the arrest records must be permanently destroyed so that it appears as though the arrest never occurred. Sometimes the records are ordered sealed in which case they are subsequently destroyed after the passage of some time.
The benfit of this motion is that if granted, members of the public will not longer be able to see that the individual was arrested. As such, prospective employers, state licensing agencies, insurance companies, and even potential dating partners -- anyone who is interested in the individual’s criminal history – who could simply run a background check and see the spotted past will not see any record of the arrest.
Another benefit is that the individual would have the ability to say that he/she was never arrested for the crime on all applications that ask about criminal history.
Motion for New Trial
Following a guilty verdict, a defendant has the right to file a motion for a new trial prior to the date of sentencing.
If granted, the verdict would be set aside and the court would order a new trial. These motions may be brought on different grounds including:
Lost/Destroyed trial record or transcript, and/or
Existance of new evidence
Motion for Transfer of Supervised Release
When individuals are placed on formal probation (in a state court matter), they are supervised by the county probation department where the crime occurred. In order to travel or move out of that county, they will require permission from the probation officer and sometimes the court to do so. If the individual is permanently moving to another county or state, then an interstate request has to be made and the probation departments in both counties must agree to the transfer.
A similar challenge applies to instances when an individual is placed on supervised release in federal matter. If that individual is moving to a different district within the state, or to a district out of state, both districts’ Probation Departments must agree to the transfer.
The transfer of probation or supervised release is often challenging as the originating probation department does not want to lose custody of the individual and the transferee probation department does not want to be responsible for a new probationer especially when the crime occurred elsewhere.
As such, it is important for the attorney representing the individual who desires a transfer to prepare and argue a thorough motion that provides compelling reasons why the court should grant the motion to transfer.
Motion to Withdraw Plea
In both state and federal cases, a defendant may seek to withdraw his or her guilty plea within a specified period of time and usually before sentencing. This requires a showing of “good cause.” Courts rarely grant this motion and
when they do so, it is based on compelling reasons such as:
Discovery of an unexpected penalty
Belief that the attorney was incompetent or ineffective
Discovering the existence of evidence that was exculpatory and not considered in the decision to enter a guilty plea.
Petitions to Reduce a Felony to a Misdemeanor
Petition to Reduce a Felony to a Misdemeanor
California Penal Code Section 17(b) allows certain felonies known as “wobblers” to be reduced to misdemeanors. A “wobbler” is a crime that can be filed as a felony or misdemeanor. Under this law, if the motion is granted, the felony charge can be reduced by the court, to a misdemeanor. This is often done in conjunction with a motion to expunge whereby the petitioner seeks to reduced the felony charge to a misdemeanor and expunge the misdemeanor. It is also done upon oral motion to the court during evidentiary proceedings wherein the judge is convinced that although the elements of the offense may be sufficiently proven, the severity of the offense does not rise to the level of a felony.
As a misdemeanor is a less serious crime in our criminal justice system, it is always advisable to seek a reduction of a felony charge to its equivalent misdemeanor when possible.
Petition to Reclassify a Felony as a Misdemeanor
In Nov. 2014, Proposition 47 was passed into law in California.
This initiative reduces the penalties for certain theft crimes and drug crimes in California. Specifically, it converts several crimes that were previously felonies or “wobblers” in California (meaning they could be charged as either felonies or misdemeanors) to misdemeanors in most situations. As a result, the maximum penalty for these crimes would generally be limited to up to one (1) year in county jail; and/or a fine of up to one thousand dollars ($1,000).
The offenses that are converted to misdemeanors under Prop 47 are:
Grand theft auto, if the car that is stolen is worth nine hundred fifty dollars ($950) or less;
Grand theft firearm, if the gun that is stolen is worth $950 or less;
Shoplifting, if the value of the stolen property is $950 or less;
Receiving stolen property, if the property received is worth $950 or less;
of a check, money order, traveler's check, etc. (also known as check that is for $950 or less;
Possession of a controlled substance;
Possession of concentrated cannabis; and
Possession of methamphetamine.
Most defendants will be charged with a misdemeanor if they are accused of one of the above-listed crimes. But Prop 47 sentence reductions will not apply to:
Defendants who have previous convictions for certain serious crimes, including rape, murder, and sex crimes against children; and
Defendants who are required to register as sex offenders for prior sex offense.
Re-sentencing under Proposition 47
Proposition 47 allows people already facing felony penalties for one of the crimes listed above to apply to a judge for “re-sentencing”. A successful petition for resentencing means that the individual will be deemed to have been convicted of a misdemeanor—not a felony—and will be eligible for an earlier release from jail/prison if incarcerated. If already released, it has the significance of reducing a felony conviction to a misdemeanor.
Writ of Habeas Corpus
The Constitution allows courts to issue writs of habeas corpus in the federal court system. Many states also recognize writs of habeas corpus. Defendants who are considering challenging the legal basis of their imprisonment, its duration, or certain conditions of confinement may seek relief from a court by filing an application for a "writ of habeas corpus."
A writ of habeas corpus (which literally means to "produce the body") is a court order to a person or agency holding someone in custody (such as a warden) to deliver the imprisoned individual to the court issuing the order and to show a valid reason for that person's detention.
If there are disputed facts, the court may hold an evidentiary hearing before ruling on a writ of habeas corpus. During the hearing, the parties (the petitioner and the government) can present evidence and the court may also issue and enforce subpoenas in order to obtain and examine evidence.
If granted, a writ of habeas corpus could lead to relief such as:
Release from custody;
Reduction in a prison sentence;
An order halting illegal conditions of confinement; or
A declaration of rights.
Habeas proceedings are often confused with the appellate process. While habeas corpus allows individuals to challenge their present confinement, it does have its limitations. Specifically, these writs cannot be used to challenge a finding of guilt as that is reserved for the criminal appeal process. Also, in many cases where prisoners are challenging the conditions of their confinement, they may be required to use the civil rights complaint process instead of habeas corpus.
When it comes to appealing guilty verdicts, prisoners are normally required to first exhaust any available relief in the state courts before seeking relief in federal courts. However, when seeking to remedy violations of their constitutional rights while in confinement, prisoners can file their complaint in either state or federal court. They can bypass state courts with these complaints because they typically include claims under provisions of the U.S. constitution, such as the Eighth Amendment.