Post-Conviction Matters

Being convicted of a crime might seem to be a dead end for legal solutions, particularly when your attorney has lost the case. However, based on the circumstances of your conviction and case, post-conviction relief could be an ideal option available to you. At Darwish Law in Santa Ana, our goal is to work closely with clients to minimize penalties, modify sentence terms, and even potentially obtain a dismissal of charges. Our attorneys can file various types of motions on your behalf. Additionally, we have extensive knowledge and experience in appellate law, in case you choose to pursue an appeal. If you are convicted, you might have to face some of the following issues:

Expungement

An expungement is a type of post-conviction remedy whereby the court permits the accused to re-enter their not-guilty plea before the dismissal of their case, under California PC 1203.4. It also allows you to withdraw your no-contest or guilty plea. An expungement absolves you of the majority of the adverse consequences of a criminal conviction.

You can only have your convictions expunged under PC 1203.4 if you satisfy the following requirements:

• You should have completed your probation period. If a probation term was included in your sentence, you should complete the probation term and follow all of its terms before requesting the court have your record expunged.
• You must be facing charges in court or found guilty of a different crime.

The crime for which you seek expungement should either be a misdemeanor crime or a wobbler crime that can be tried as a misdemeanor. The law prevents you from expunging your conviction record if you were found guilty of a felony and served time in prison.

Getting a Felony Conviction Expunged

You can only expunge convictions for felonies that originate from wobbler charges. Wobblers refer to charges that can be classified as either misdemeanors or felonies, depending on the specific circumstances.

To submit an expungement petition, it is necessary to request that the court reduce the wobbler conviction from a felony to a misdemeanor. If you can demonstrate to the judge that you sincerely regret your actions and have successfully undergone rehabilitation, there is a possibility of having your sentence reduced.

If you have been convicted of a felony but did not serve time in prison, you may be eligible to have your record expunged. Additionally, if the accused served probation and jail time instead of prison time, they have up to 5 years to live in the area where their conviction was made before it is expunged.

Arrest Record Sealing

A criminal record is a public record, which means that anyone can see information about arrests, charges, and convictions. California laws allow you to live your life without having to worry about your past. An arrest record that did not result in a conviction could, at times, have adverse effects on your life. One option to protect yourself from the adverse impacts of an apprehension that results in no conviction is to seal the arrest record.

The main distinction between record sealing and expungement is that the latter erases your conviction record. Sealing, on the other hand, destroys an arrest record that didn't result in a conviction. You might be able to have your arrest record sealed under California PEN 851.87 in the following situations:

• You were arrested, but no charges were filed against you. Furthermore, the time restriction for filing misdemeanor or felony charges should have elapsed.
• You were charged by the prosecutor, but the case was dropped without giving you the chance to refile.
• When your case reached trial, the court ruled that you were innocent of the allegations.
• You were facing a conviction that had been overturned by the appeals court.
• Your charges were dropped after you finished the pretrial diversion program.

In the past, the old law allowed those who filed petitions to bear the burden of demonstrating their factual innocence to seal their arrest record. Nevertheless, following the passage of Senate Bill 393, the prosecution now has the burden of demonstrating that you do not have the right to have the record sealed. You can't seal your California record if you were arrested on additional charges related to your arrest or if you were caught for murder.

Defendants with a history of arrests related to domestic violence are another category of people whose records cannot be sealed. The following steps are involved in the process of sealing a record:

• Submit a petition to the jurisdiction in which you were detained.
• The court forwards your petition to law enforcement and the prosecution office.
• The court schedules a hearing at which the prosecution can challenge the petition.

Sealing an arrest record, as opposed to expungement, results in the destruction of your record and its cessation as public information. As a result, landlords or employers cannot use the record against you. The following records are deleted when sealed under PEN 851.87:

• Booking photographs.
• Fingerprints.
• Rap sheet entries.
• Police reports.

While sealing an arrest record effectively destroys it, it can still be used if you face charges for another offense. Additionally, you are required to disclose the record when applying to be a peace officer or running for public office.

Certificate of Rehabilitation

This certificate is a type of post-conviction relief granted when the court believes you've been rehabilitated from your criminal behavior. A rehabilitation certificate is equivalent to a request for a pardon from the governor. A COR does not expunge your criminal record, but the court can issue an order certifying that you are a law-abiding citizen.

The following conditions should be met for you to be eligible for a COR:

• You have not been convicted of another crime since your sentence was dismissed or completed.
• You aren't under probation for a felony crime.
• You've lived in California for five years or more.
• Based on the severity of your sentence, you've been rehabilitated for a certain number of years.

If you satisfy all of the requirements and the time limit has passed, you can apply for the rehabilitation certificate. The Supreme Court handles the petition for a COR. The court will require you to provide all the details about your conviction in addition to filing the petition.

The following details should be provided for each conviction:

• The jurisdiction in which your conviction took place.
• Your conviction date.
• The charges that resulted in your conviction.
• The date on which the court released you from probation.
• The punishment imposed by the court following your conviction.
• The date that you got out of prison or jail.

The court may consider the following elements before awarding your certificate of rehabilitation:

• Proof that you work or attend school.
• Evidence that you participated in volunteer work.
• Proof of residence.
• Your employment history.
• Letters of recommendation from friends, family, employers, or colleagues.
• A statement explaining why you want the rehabilitation certificate.

The governor's pardon comes with several benefits for those who receive a COR. You will also be exempt from California's legal obligation to be enlisted in the sex offender registry. Failure to submit the required documents when submitting a COR petition could result in rejection. Therefore, getting legal counsel is essential.

Military Diversion

This is a pretrial diversion program in which the court suspends criminal prosecution for misdemeanor offenses committed by former military personnel. Members of the military may experience trauma and mental health problems upon returning to civilian life as a result of the harsh conditions they are subjected to.

If you've served in the military and are facing trauma, a military diversion program can be a valuable resource to help you avoid imprisonment for misdemeanor charges. These programs typically last for one to two years. As part of the program, you'll receive therapy and counseling aimed at helping you manage the disorders and stress you may have experienced during your military service.

Military diversion isn't automatic. If you have suffered sexual, emotional, or mental trauma as a result of your military service, your lawyer can plead with the court to divert your case. After that, the court will order an evaluation to see if you qualify for the program. The following are some of the requirements for taking part in the military diversion program:

• Mandatory appearance in court proceedings.
• Attend domestic violence and substance abuse counseling.
• Random testing for alcohol and drugs.
• Satisfactory updates on the diversion program's status from the organizations in charge of it.

Probation Violations

If you are a first-time offender and have been charged with a California felony or misdemeanor crime, you could be eligible for probation. While probation permits an offender to serve community service and spend a portion of their punishment out of jail, the magistrate imposes several requirements when imposing this sentence.

Common requirements for felony and misdemeanor probation can include the following:

• Checking in with the assigned probation officer regularly.
• Avoiding further criminal activity while serving probation.
• Pay all court fines and restitution to the victim.
• Mandatory alcohol and drug testing.
• Drug treatment and mental health counseling.
• The issuance of restraining orders.

Probation violations could lead to arrests and charges if one or more terms of probation are not completed. A district attorney, prosecutor, or probation officer can initiate your probation violation hearing. A judge will hear your case if you have broken the terms of your probation, and unlike in criminal court, a lower burden of evidence will be required to prove your violation.

Your probation violation sentence will vary based on several factors, such as:

• Your criminal background.
• The period spent on probation before the crime.
• The gravity of your transgression.
• Probation department recommendations.

If the judicial system determines that you did not breach your probation terms, the presiding magistrate can order that you serve the remainder of your probation term under the same restrictions as when you initially started.

However, you may suffer the following penalties as a result of your violation:

• Your probation will be revoked, and your original prison or jail sentence will be reinstated.
• Your probation will be reinstated with stricter requirements.
• Your probation will be revoked, and the maximum term for your offenses will be reinstated.
• Probation period extension.

Setting a Conviction Aside

If you're an immigrant living in the US, you can incur severe immigration repercussions such as inadmissibility or deportation if you're found guilty of certain offenses. Some of the crimes that can draw this type of act include sex crimes, violent felonies, and offenses of moral turpitude. Before filing a guilty plea in the case, the court is required under California PEN 1016.5 to inform you about the prospect of deportation.

If the court fails to warn you of such implications, they will stand in violation of the law, and you could withdraw your plea. The court could overturn your conviction if the prosecution is unable to disprove the presumption. The same provision allows the accused parties to seek a move to vacate their conviction if they didn't fully comprehend the implications of their conduct.

The following factors will determine whether your move to overturn your conviction is successful:

• Timely motion. As soon as you understand the impact of a guilty plea, you should initiate a motion to vacate your conviction.
• Your conviction should have no less than three immigration repercussions.
• The presiding magistrate failed to inform you of the repercussions of pleading guilty.
• If you were aware of the potential outcomes, you wouldn't have filed any plea.

Getting a Conviction Overturned Under PC 1437.7

A conviction is legally unsuitable if a prejudiced error prevents you from understanding the evidence against you, mounting a defense, or accepting the implications of your sentence. If you want to have your conviction vacated under this provision, you need to take note of the following:

• The date you are summoned to the immigration court.
• The date on which the court ruled on your deportation.

Under the following situations, the court could overturn your sentence:

• There's reason to believe that you carried out the action with care for others' lives.
• You are the victim of a prejudicial error.

Early Probation Termination

If you are convicted of a California crime, the judge has the option of sending you to probation rather than a prison sentence. Based on the severity of the charges, probation could last from 1 to 5 years. Judges may opt to award an early termination of probation under California PEN 1203.3. Completing the probation sentence is one of the conditions for having your conviction expunged. Consequently, you can submit an early expungement petition if you have an early termination.

Before the date of your early probation termination hearing, your counsel should submit a petition to the prosecution attorney and the court. Your counsel might persuade the prosecution attorney to support your request by discussing with them why you should receive an early termination. You can have your lawyer attend the proceedings on your behalf because the early probation termination hearings are not as formal as criminal trials.

Getting your probation dismissed frees you from having to adhere to the terms of your probation in addition to filing an early petition for expungement. By doing this, you'll lower your chances of being found guilty of breaking your probation and facing jail time.

Although PC 1203.3 authorizes the court to discontinue your probation term at any time, judges will frequently wait until you've served at least one year of your misdemeanor probation term and eighteen months for felony probation before terminating your probation. The court will take the following into account when determining whether to grant your request for an early probation termination:

• The severity of your conviction.
• The prosecutor's and probation officer's opinions.
• Probation's impact on your life.
• If you have received a citation for violating your probation terms.
• Your past criminal activity.

The court will drop your felony conviction and downgrade it to a misdemeanor if the judge chooses to dissolve your probation term early.

Mental Health Diversion

A defendant could be eligible for a mental health diversion under PEN 1001.36, as an alternative to the standard penalties that come with criminal convictions. You can receive therapy for your mental health issues through the diversion program. Upon completion of the treatment program, the court can drop your criminal charges.

PC 100.36 is beneficial to individuals facing felony or misdemeanor offenses, even though most pretrial diversions don't admit people facing felony crimes. Mental health diversion programs are only open to you if you're able to fulfill the following demands for enrollment:

• You suffer from a psychological or mental condition.
• Your psychological or mental condition significantly influences your criminal behavior.
• You're a candidate for mental health treatment.
• You pose no risk to the safety of the public.
• You waive your right to a prompt trial.

This diversion program lasts for one to one and a half years and includes outpatient as well as inpatient care. The court will decide what kind of program best fits your case after hearing arguments from both the prosecution and defense counsel.

Find a Skilled Criminal Lawyer Near Me

Dealing with post-conviction issues can be challenging, whether you are fighting accusations of probation violations or seeking relief through expungement, record sealing, and rehabilitation. Therefore, it is essential to consult with an experienced criminal attorney. At Darwish Law, we offer expert legal assistance to individuals in Santa Ana, California, who are facing post-conviction issues. Our goal is to achieve the best possible outcome for our clients. Call us today at 714-887-4810 to discuss your situation.