Post-trial Relief (expungement, 1203.4, etc.)
Category > Post-trial Relief (expungement, 1203.4, etc.)
Updated 7/12/2024The trial court erred in denying defendant’s petition for a certificate of rehabilitation without considering his character and conduct for the last 40 years.The trial court abused its discretion in denying defendant’s petition for a certificate of rehabilitation under Penal Code section 4852.01 by relying on factors not relevant under the statute, and in failing to consider defendant’s character and conduct in the 40 years after the crime.id: 28319
Updated 6/1/2024The trial court erred in denying the request for compassionate release as the fact that defendant could talk, and influence others to commit crimes did not show he was dangerous.The trial court abused its discretion in denying defendant’s petition for compassionate release under Penal Code section 1172.2 because the finding of future dangerousness was not supported in the record. The fact that the defendant could talk, and therefore potentially influence others to commit criminal acts, did not establish a risk that he would commit a superstrike offense.id: 28293
Updated 3/5/2024The trial court erred in denying the petition for compassionate release based simply on his past conduct and lack of remorse.Defendant filed a petition for compassionate release under Penal Code section 1170 (e) on the grounds that he had less than six months to live and no longer poses a danger to society. The trial court abused its discretion in denying the petition claiming defendant “did not deserve compassionate release” due to his past and lack of remorse for the offense.id: 26796
Updated 2/26/2024Death sentence was vacated after a showing that a penalty phase witness (who later recanted) falsely testified that defendant had sexually assaulted her. At the penalty phase of defendant’s capital case, the prosecution presented a witness who claimed that defendant had sexually assaulted her. After trial, the defense alleged in the habeas corpus petition that the witness falsely identified the defendant. Following an evidentiary hearing, the referee found the witness had testified falsely as she recanted her identification, and the descriptors given to police initially did not match defendant. Defendant was entitled to relief (death sentence vacated) given that material false evidence was presented at the penalty phase.id: 26281
Updated 2/24/2024Section 1203.4a(a)’s “honest and upright life” provision does not require that a defendant spend time outside of custody before obtaining expungement.A person convicted of a misdemeanor is entitled to expungement of that conviction if, among other things, the person lives “an honest and upright life” during a specified period after the judgment. (Penal Code section 1234a(a).) A person may live such a life even if he or she has been in custody since completing the sentence imposed for the misdemeanor.id: 26765
Updated 2/22/2024The trial court erred by denying defendant the opportunity to present new and relevant information after the Secretary of the CDCR had recommended resentencing under section 1170 (d)(1).Defendant, served 12 years of his third strike sentence of 30 years-to-life. The Secretary of the CDCR then recommended, under Penal Code section 1170 (d)(1) that defendant be resentenced in light of his violation-free conduct while in prison and record of successful programing. The trial court considered the recommendation, but in a minute order declined to exercise its discretion to recall defendant’s sentence. Contrary to defendant’s claim, he was not entitled to a sentencing hearing on the matter. However, the trial court abused its discretion by denying defendant the opportunity to present additional information relevant to the Secretary’s recommendation.id: 27034
Updated 2/3/2024The trial court erred in finding defendant was ineligible for resentencing under section 1170(d)(2) because his prior juvenile offense of second/degree burglary carried no real risk of harm Penal Code section 1170(d)(2) allows an inmate subject to life without parole to petition for recall and resentencing if the inmate was under 18 at the time of his crime, and has served 15 years of the sentence. The defendant must also prove one of four enumerated mitigating circumstances. The trial court erred in finding he had not proven one of the listed circumstances because he showed that his prior prison juvenile adjudication for second degree burglary did not pose a risk of physical harm to others. The matter was remanded for resentencing under section 1170(d)(2). id: 27513
Updated 2/3/2024Trial courts may not summarily decline recommendation for resentencing under section 1170(d) without giving defendants notice and an opportunity to be heardThe secretary of the CDCR has the authority under Penal Code section 1170(d) to recommend to the trial court that the sentence be recalled and the defendant resentenced. This is so even when the case is long since final and the original sentence was the product of a plea agreement. While the courts have the authority to summarily decline to recall and resentence, defendants have a due process right to notice and an opportunity to be heard before the court rules, and the statement of the court’s reasons for the declination. However, in cases where the prosecution has not weighed in prior to the summary declination, defendants do not have a constitutional right to counsel. id: 27522
Updated 2/3/2024The trial court erred in denying the defendant’s request for compassionate release where he had an advanced illness and there was no finding that he was capable of committing a “super strike” offense.The trial court abused its discretion by denying defendant’s petition for compassionate release given defendant’s serious and advance illness with an end-of-life trajectory. The court failed to make a finding that he was capable of committing a “super strike” offense that would have blocked his release.id: 27724
Updated 2/3/2024The trial court erred in refusing to rule on a transfer hearing in a case that had been final before the section 1170 (d)(1) recall.In 2019, the trial court recalled defendant’s sentence under Penal Code section 1170 (d)(1) to correct the original sentence in light of an intervening case. Prior to the resentencing, the defendant requested a Prop 57 transfer hearing. The trial court denied the request because the original case had become final before Prop 57 took effect. However, that ruling was erroneous because the new sentence would replace the original sentence, and so the original sentence would no longer be final for the present purposes.id: 27079
Updated 2/1/2024AB 1540, which clarified the law on resentencing under section 1170(d) applied to defendant’s case and he was entitled to notice and the appointment of counsel.The trial court denied the CDCR’s Penal Code section 1170(d) request that defendant be resentenced in light of changes made to section 12022.53. AB 1540, effective January 1, 2022 clarifies the relevant law. That provision applies to defendant’s case and the matter was remanded so that defendant was given notice of the recommendation from the CDCR, and appointed counsel for a hearing where the trial court can rule on the recommendation.id: 27952
Updated 2/1/2024Newly enacted Penal Code section 1170(b)(2) requires that factors used to support the upper term must be found true BRD.The trial court erred by imposing the upper term in light of SB 567 and AB 124, both of which are retroactive, and require that the upper term can only be applied when the aggravating factors used to support them have been found true beyond a reasonable doubt.id: 27956
Challenges to decisions regarding compassionate release should be made on appeal, and the trial court erred by denying release without finding defendant was a threat.The secretary of the CDCR requested that the trial court recall defendant’s sentence under Penal Code section 1170, subd. (e), on the grounds that he had less than six months to live, and posed no threat to the community. The trial court thereafter denied the request for compassionate release. The court’s ruling was erroneous because it found he did not deserve to die at home with his family, and the court made no finding as to whether the defendant posed a threat. Challenges to the trial court’s rulings regarding compassionate release should be made on appeal rather than the writ process, and the parties should inform the court of factors relevant to a request for expedited processing of the appeal.id: 26054
An order denying a factual innocence motion is appealable.Defendant’s 1991 second degree murder conviction was reversed when the superior court granted his habeas corpus petition. The petition alleged various grounds for relief including ineffective assistance of counsel at trial, and factual innocence. The court granted the relief solely on the ground of ineffective assistance of counsel. Defendant thereafter filed a Penal Code section 1485.55 motion for a finding of factual innocence. The motion was denied. Contrary to the state’s argument, the order denying a factual innocence motion is appealable.id: 25946
Section 4852.01 denied defendant of equal protection by allowing eligibility for a certificate of rehabilitation for those who served a prison sentence and were rehabilitated but not for those who served a probation sentence. The trial court denied the defendant’s petition for a certificate of rehabilitation under Penal Code section 4852.01 because he was incarcerated after completing a sentence of felony probation. However, the statute grants certificate eligibility to felons who have completed a prison sentence and are subsequently incarcerated. The statute denied defendant equal protection by denying certificate eligibility only to those who have served probation sentences.id: 24857
The trial court had jurisdiction under section 1473.6 to rule on defendant’s motion to vacate his parole revocation where he discovered evidence of wrongdoing by his parole officer.Defendant’s parole was revoked and he thereafter served a term of custody. He later discovered evidence that he believed showed his parole revocation was motivated by his parole officer’s interest in retaliating for litigation defendant initiated against another law enforcement officer. Defendant moved for relief under Penal Code section 1473.6, where the court can vacate a judgment if misconduct by a government official is discovered but the trial court found it lacked jurisdiction to consider the claim. However, section 1473.6 gave the court jurisdiction over its earlier order revoking defendant’s parole.id: 24869
A felony conviction doesn’t disqualify a defendant from seeking relief as to misdemeanor convictions in the same case.A defendant who has suffered both felony and misdemeanor convictions in the same case may seek dismissal of the misdemeanor convictions under Penal Code section 1203.4.id: 25464
That the defendant served a prison term for a prior felony later designated as a misdemeanor under Prop 47 did not disqualify her for relief under section 1203.4a. A defendant whose prior felony conviction has been designated as a misdemeanor pursuant to Prop 47 can obtain relief under Penal Code section 1203.4a despite having served a prison sentence for the prior conviction.id: 25132
Defendant’s failure to fully pay victim restitution did not authorize the trial court to deny the relief otherwise mandated by section 1203.4. Since the defendant was discharged from probation before the termination of probation based on good conduct as evidenced by his completion of programs and extended sobriety, the fact that he still had an outstanding balance on victim restitution did not authorize the trial court to deny relief otherwise mandated by Penal Code section 1203.4 (withdrawal of the plea and dismissal of complaint). id: 24261
Marsy’s Law did not require the Governor to notify the victim’s before commuting defendant’s sentence.Marsy’s Law, which mandates notice to victims and an opportunity to be heard at parole hearings does not apply to executive clemency proceedings.id: 24174
Defendant’s fingerprint impressions were “records of the arrest” and should have been destroyed after the factual innocence finding.The trial court found defendant to be factually innocent pursuant to Penal Code section 851.8, ordered that her records of arrest be destroyed, but that her fingerprint impressions be retained. However, fingerprint impressions obtained at the time of arrest are “records of the arrest” within the meaning of section 851.8, and as such they should have been ordered to be destroyed.id: 23827
The trial court’s order finding defendant factually innocent after granting his habeas petition was not appealable by the prosecution.Defendant filed a habeas corpus petition challenging his 1995 murder conviction. After a 10-day evidentiary hearing, the court granted his petition. The court later granted his claim under Penal Code section 1485.55 allowing a person whose habeas corpus petition was granted to be found factually innocent. The District Attorney appealed arguing section 1485.55 should not be applied retroactively and there was insufficient evidence to support the factual innocence finding. However, the trial court’s order granting the section 1485.55 motion was not appealable by the prosecution. id: 24065
Defendant who was convicted of attempted lewd acts was eligible for section 1203.4 relief after fulfilling the terms of his probation.Defendant was convicted of attempted lewd acts on a child and fulfilled the conditions of his probation. The Penal Code section 1203.4, subd.(b) expungement process does not apply to people who are convicted of lewd acts under section 288. However, that exception does not apply to people who were convicted of attempted violations of section 288.id: 23551
Section 1203.4, subd.(b) does not prohibit dismissal of defendant’s convictions for violating sections 288a, subd.(b)(2) and 289, subd.(i). The trial court denied defendant’s request to dismiss defendant’s convictions for certain sex offenses after he successfully completed probation. However, contrary to the trial court’s ruling, section 1203.4, subd.(b) does not prohibit the dismissal of defendant’s convictions for violating section 288a, subd.(b)(2), and 289, subd.(i).id: 23638
The denial of defendant’s petition for a certificate of rehabilitation and relief from sex offender registration violated his right to equal protection under People v. Hofsheier. People convicted of violating Penal Code section 288.7 (prohibiting sex with a child under 10 years old) are eligible to obtain a certificate of rehabilitation under section 4852.01 and relief from registration under section 290.5, while others (like defendant) convicted of violating section 288, subd.(a) (lewd acts with a child under 14) are not. There is no rational basis for the unequal treatment of these similarly situated groups of sex offenders. Sections 4852.01 and 290.5, subd.(a)(2) violate equal protection to the extent they exclude people convicted of violating section 288, subd.(a) from obtaining a certificate of rehabilitation and relief from the section 290 registration requirement.id: 23385
The trial court erred by denying defendant’s request for DNA testing of a key piece of evidence from his 1998 robbery trial.Defendant was convicted of robbery in 1998. Identity was the issue at trial and a water bottle possessed by the robber and left at the scene of the crime was a key piece of evidence. Defendant sought DNA testing of the water bottle pursuant to Penal Code section 1405. The trial court abused its discretion in denying the motion after finding there was no reasonable probability the verdict would have been more favorable had the DNA testing been performed as the remaining evidence was not particularly strong.id: 23229
Defendant who was sentenced to prison with execution suspended and probation imposed was eligible for section 1203.4 relief.The trial court sentenced defendant to five years in prison, but suspended execution of the prison term and granted probation. After successfully completing probation, he moved to set aside his conviction pursuant to Penal Code section 1203.4, but the trial court ruled he was ineligible because he technically received a prison sentence. The trial court’s ruling was erroneous as defendant was a probationer eligible for section 1203.4 relief. id: 23225
The trial court properly dismissed the unpaid balance of defendant’s restitution fine after he successfully completed a drug court program and the court granted relief under section 1203.4.Defendant successfully completed his probation through a drug court program. The trial court then dismissed all charges pursuant to Penal Code section 1203.4. The court thereafter properly suspended or dismissed the unpaid balance of defendant’s restitution fine.id: 23296
A defendant convicted of violating section 288, subd.(a) must be permitted to seek a certificate of rehabilitation as defendants convicted of more serious offenses can apply.The statute banning persons convicted of crimes under Penal Code section 288, subd.(a) from petitioning for a certificate of rehabilitation while allowing other similarly situated persons who have committed more serious crimes under section 288.1 to file such a petition violates equal protection under the state and federal constitutions. Section 288, subd.(a) must be removed from the list of crimes from which an absolute prohibition on petitioning for a certificate of rehabilitation exists.id: 23568
Defendant was entitled to specific performance of the 1997 plea bargain, where he was told he would get 1203.4 relief and relief from sex offender registration if he completed probation and remained crime free for 10 years. In 1997, defendant pled guilty to one count of continuous sexual abuse of a child under Penal Code section 288.5. He was granted probation with a one-year jail sentence and various other conditions including sex offender registration. As part of his plea bargain, he was promised that if he successfully completed his probation and remained crime free for 10 years his sex offender registration obligation would be terminated, he could withdraw his plea and have charges dismissed under Penal Code section 1203.4, and he could obtain a certificate of rehabilitation under section 4852.01. After his plea the law was changed to prohibit this relief for anyone convicted under section 288.5. However, defendant was entitled to the relief under sections 1203.4, 4852.01, and 290.5 because the relief was a material term of the plea bargain and defendant relied on that relief when pleading guilty.id: 22500
A judge ruling on section 1203.4 motion to expunge may consider
post-probation conduct.The trial court erred in denying defendant’s Penal Code section 1203.4 to expunge his drug possession conviction because it apparently refused to consider defendant’s post-probation conduct. However consideration of post-probation conduct is not precluded under the statute and the matter was remanded to allow the trial court to properly consider the merits of the motion.id: 20992
Defendant who successfully completed probation following his convictions for attempted lewd acts was entitled to section 1203.4 relief.Defendant pled guilty to attempted lewd acts and was placed on formal probation. After successfully completing probation, defendant filed a motion seeking release from penalties under Penal Code section 1203.4. The trial court denied the motion relying on section 1203.4, subsd.(b) which says relief is not available for those convicted of section 288 offenses. However, since defendant was convicted of attempted section 288 violations, the exception did not apply, and the relief sought was mandatory.id: 19390
The trial court erred in denying defendant's Penal Code section 851.8 motion for a finding of factual innocence where he showed the information taken was not a trade secret. Defendant was convicted of grand theft of a trade secret under Penal Code section 499c. The conviction was thereafter reversed due to insufficient evidence that the information taken
qualified as a trade secret. Because defendant then showed, and the prosecutor failed to refute the information at issue was not a trade secret, the trial court erred in rejecting defendant's
request for a finding of factual innocence.id: 19303
The trial court erred in denying defendant's motion for a finding of factual innocence after the appellate court found he could not have committed the crime.Defendant's conviction for practicing medicine without a license in violation of Business and Professions Code section 2053 was reversed by the Court of Appeal who found that because he
had a valid license he could not have violated that provision. The trial court thereafter erred in denying defendant's motion for a finding of factual innocence under Penal Code section 851.8.id: 19143
The trial court's ruling of factual innocence should be reviewed de novo.When a defendant is acquitted of criminal charges, Penal Code section 851.8, subd.(e), authorizes a petition to the trial court for a finding of factual innocence. Although the appellate court should defer to the trial court's factual findings to the extent they are supported by substantial evidence, it must independently examine the record to determine whether the defendant has established "that no reasonable cause exists to believe that he or she committed the offense charged." Applying that standard, the defendant failed to carry her burden when one reasonable interpretation of the evidence was that defendant killed her husband; she had a personal and financial motive to kill him; and she tried to have witnesses lie to the police. The trial court erred in making a finding of factual innocence.id: 17180
Trial court abused its discretion in denying the motion for a finding of factual innocence without conducting an evidentiary hearing.Defendant filed a motion pursuant to Penal Code section 851.8 for a finding of factual innocence and for the sealing and destruction of his arrest record, after the dismissal of a case in which he was charged with two Health and Safety Code violations. The trial court abused its discretion in denying the motion without conducting an evidentiary hearing.id: 17270
City had no standing to oppose a section 851.8 motion to seal arrest records based on factual innocence.Following a dismissal of all charges, defendant petitioned the court for an order to seal and destroy his arrest records under Penal Code section 851.8 because he was factually innocent. The district attorney did not oppose the motion. The City of Burbank did oppose the motion. However, section 851.8 provides the district attorney shall represent the state in these matters. The city had no standing to object.id: 17607
Updated 3/7/2024The trial court did not err in refusing defendant’s request to seal her juvenile court records where she had been convicted of six felonies after the juvenile court’s jurisdiction over her terminated.The trial court did not err in denying defendant’s request to seal her juvenile court records under Welfare and Institutions Code section 781 where she had committed six felonies since the juvenile court’s jurisdiction over her expired and the court found she had not obtained rehabilitation based on the facts underlying those convictions.id: 26438
Updated 3/5/2024The fact that defendant had obtained section 1203.4 relief did not entitle him to have his arrest record sealed.The trial court did not err in denying defendant’s petition to seal his arrest records pursuant to Penal Code section 851.91. The fact that he had obtained relief under section 1203.4 did not entitle him to have his arrest records sealed as a matter of right.id: 26898
Updated 3/5/2024Defendant who pled no contest to a drug offense and completed Prop 36 diversion was not entitled to have his arrest records sealed under section 851.91Defendant argued the trial court erred in finding he was ineligible to have his arrest records sealed under Penal Code section 851.91. He claimed his conviction was “deemed never to have occurred” under section 1210,1 (e)(1) once he successfully completed probation and drug treatment. However, in light of defendant’s no contest plea, his arrest did result in a conviction. While his arrest and conviction are deemed never to have occurred for most purposes, he was not the same as a person who was never convicted, and he was not entitled to have his arrest records sealed.id: 27021
Updated 3/4/2024The trial court erred in failing to hold a hearing when resentencing defendant under section 1170(d)(1) following a request from the CDCR. Under the authority of Penal Code section 1170 (d)(1) the Secretary of the CDCR sent a letter to the trial court requesting the defendant be resentenced. The trial court thereafter erred in resentencing the defendant without holding a hearing following notice to all parties and without providing a statement of reasons.id: 27358
Updated 3/4/2024Defendant’s successful section 1172.6 petition did not entitle him to a finding of factual innocence under section 851.8.The trial court found defendant was not the actual shooter in the 2004 incident and did not act with reckless indifference to human life. The court granted his petition for relief under Penal Code section 1172.6. However, the order vacating his murder conviction under section 1172.6 did not entitle him to a finding of factual innocence.id: 28150
Updated 2/26/2024No Duenas error by denying expungement petition based on outstanding restitution obligation.Defendant argued that under People v. Duenas (2019) 30 Cal.App.5th 1157, the trial court’s denial of her expungement petition based on outstanding victim restitution obligations was erroneous because she was financially unable to pay restitution. However, Duenas was distinguishable because it involved revenue-generating fines and assessments where this case involved restitution intended to make the victim whole. Moreover, the denial of expungement on this basis did not violate due process.id: 26454
Updated 2/23/2024Evidence that defendant acted alone in committing the gang offense in 2009 did not constitute newly discovered evidence under section 1473.7, given a 2012 change in the law that required two gang members to commit the offense. Defendant filed a motion to vacate his prior convictions under Penal Code section 1473.7 based on newly discovered evidence of innocence. His claim was based on the fact that his 2009 and 2010 convictions for street terrorism under section 186.22 (a) were no longer valid due to the fact that a published case in 2012 (People v. Rodriguez (2012) 55 Cal.4th 1125) found that a person must act in concert with a fellow gang member to be guilty of the offense. The police reports and preliminary hearing transcripts showing that he acted alone did not qualify as newly discovered evidence.id: 26781
Updated 2/23/2024Resentencing under section 1170 (d) did not reopen an otherwise final case in a way that would have allowed the application of Prop 57.10 years into a 20 year sentence, the CDCR recommended the trial court recall and resentence defendant under Penal Code section 1170 (d). Defendant agreed with the recommendation and requested that the trial court apply Prop 57 and transfer jurisdiction to the juvenile court since he was 15 years old at the time of the offense. However, the trial court properly declined to apply Prop 57 because defendant’s judgement was final long before Prop 57 took effect.id: 26875
Updated 2/23/2024There was no prejudice from the trial court’s summary denial of defendant’s petition for resentencing under section 1170.91, where defendant stipulated to the original sentence. Defendant argued the trial court erred in denying his petition for recall of his sentence under Penal code section 1170.91 (b) which provides for resentencing of veterans suffering from mental health or substance abuse issues. Defendant claimed summary denial was improper because the statute required a hearing. However, there was no prejudice as defendant was plainly ineligible for relief since he had agreed to the stipulated sentence in 2009, and the court would have had no discretion to change the sentence regardless of defendant’s mental health and substance abuse problems. id: 26941
Updated 2/22/2024The trial court did not err by refusing to recall defendant’s sentence following the CDCR’s secretary’s request to do so, without appointing counsel for the defendant.The secretary of the CDCR recommended the trial court recall defendant’s sentence that was imposed years earlier. The recommendation was made under Penal Code section 1170 (d)(1). The trial court entered an order summarily declining to recall the sentence. Contrary to defendant’s claim, the trial court did not violate due process by making its decision without appointing counsel for the defendant.id: 27043
Updated 2/22/2024Section 1170.91 (b) which provides for resentencing of veterans who suffered trauma or substance abuse in the military does not apply to people sentenced after January 1, 2015. Defendant petitioned for resentencing under Penal Code section 1170.91 (b), which authorizes relief for military veterans who suffer from military-related trauma and substance abuse, and who did not have those factors considered as mitigating factors when they were originally sentenced. The trial court properly denied the petition because the statute only authorizes sentencing relief for those who were sentenced before January 1, 2015, and defendant was sentenced three months after that date.id: 27047
Updated 2/4/2024Application to reduce a dead client’s felony to a misdemeanor was moot. Defendant died in 2012. In 2020, counsel filed an application under Penal Code section 1170.18(f) seeking to have defendant’s 1998 felony conviction designated a misdemeanor. However, the application on behalf of a dead defendant was moot where there was no showing that granting the petition would provide any effective relief.id: 27382
Updated 2/4/2024CDCR’s letter to correct error in the abstract of judgment was not a sentence recall under section 1170 (d). In 2019, the CDCR notified the trial court of potential errors in the 2007 abstract of judgment. When the matter was calendared, defendant asked the trial court to conduct a full resentencing hearing. The trial court did not effectively recall defendant’s sentence under Penal Code section 1170 (d)(1), and so he was not entitled to a full resentencing hearing.id: 27311
Updated 2/4/2024Petition for a finding of factual innocence filed 12 years after the dismissal of charges was untimely.Defendant filed a petition seeking a finding of factual innocence more than 12 years after the dismissal of his charges. The law imposes a two year time period for the filing of such a petition absent good cause. Defendant’s claim that he was unaware of such a procedure did not establish good cause for the delayed filing.id: 27595
Updated 2/1/2024Defendant’s agreement to a negotiated sentence made him ineligible for resentencing under Penal Code section 1170.91.Penal Code section 1170.91 allows a person convicted of a felony who may suffer from trauma as a result of military service to petition for resentencing. However, the provision does not apply to a person who pled guilty pursuant to an agreement that provided for a stipulated sentence.id: 27935
The trial court did not err in denying the petition for a finding of factual innocence for a defendant who pled guilty and later had the action dismissed under section 1203.4.A defendant who pleads guilty is statutorily precluded from a finding of factual innocence under Penal Code section 851.8 because a conviction has occurred as a result of the guilty plea. A dismissal after a defendant successfully completes probation (Penal Code section 1203.4) does not expunge the defendant’s conviction with regard to a defendant’s filing a petition for a finding of factual innocence.id: 26161
The trial court lacked the power to dismiss defendant’s convictions under section 1385 after he had completed his probation.A trial court exceeds the power conferred by Penal Code section 1385 when it dismisses an action after the probation period expires. A court may exercise its dismissal power under section 1385 at any time before judgment is pronounced, but not after judgment is final.id: 25624
Defendant’s good behavior in federal custody did not establish an “honest and upright life” for purposes of section 1203.4. Defendant appealed the trial court’s denial of his motion to expunge his conviction for drug possession after he successfully moved to reduce the felony to a misdemeanor. He argued the trial court erred by not considering his good behavior during federal custody as evidence of an “honest and upright life” within the meaning of Penal Code section 1203.4a. However, compliance with prison regulations in an institutional setting does not satisfy the requirement of an honest and upright life. It did not matter that he was only in custody because of his immigration status.id: 26116
The trial court did not err by denying defendant’s request to reduce his conspiracy conviction to a misdemeanor following Prop 64.The trial court denied defendant’s request to reduce his felony conspiracy conviction to a misdemeanor. The court had discretion to reduce the offense under Penal Code section 17, subd. (b)(3) since the target of the conspiracy - possession of marijuana for sale became a misdemeanor following Prop 64. The court did not abuse its discretion by denying the request in light of defendant’s record and character. The court could not reduce the offense under Health and Safety Code section 11364.8, subd.(e) (also added by Prop 64) because conspiracy is not a marijuana-related offense.id: 25680
Defendant’s out-of-state residency disqualified him from seeking a pardon by way of a certificate of rehabilitation.Trial court properly denied defendant’s petition for a certificate of rehabilitation and pardon under Penal Code section 4852 because section 4852.06 prohibits such a petition unless the petitioner has resided in California for the five-year period immediately preceding the date of filing.id: 25670
A motion to recall the remittitur was not available to obtain relief under SB 620, which gave courts the discretion to dismiss gun enhancements. Senate Bill 620 and the associated amendment to Penal Code section 12022.53, effective January 1st, 2018, gave trial courts discretion to dismiss firearm enhancements, applies to nonfinal case. In a case that had been final, defendant filed a motion to recall the remittitur to reopen the case in order to seek relief under SB 620. However, the court found a motion to recall the remittitur is not available in this circumstance.id: 25623
Section 1203.4 is the exclusive method for a trial court to dismiss a case after the completion of probation, and the court did not err in denying the request made under section 1385.After defendant successfully completed probation he requested to have the action dismissed in the interest of justice pursuant to Penal Code section 1385. The trial court’s denial of the motion was an appealable order. However, there was no error since the motion was brought under section 1385, and section 1203.4 is the exclusive method for a trial court to dismiss the conviction of a defendant who has successfully completed probation.id: 24956
A defendant can’t file a petition seeking a finding of factual innocence until the statute of limitations on the potential charges has run.Defendant was arrested for domestic violence but the prosecution later declined to press charges. He thereafter petitioned for a finding of actual innocence under Penal Code section 8518, but the petition was denied since the statute provides the request may not be made until the statute of limitations has run on the potential charges. The provision requiring a delay until the statute of limitations has run does not violate due process or equal protection principles.id: 25533
Different requirements for former probationers and prisoners seeking a certificate of rehabilitation doesn’t violate equal protection. Former probationers face different eligibility criteria than former prisoners when seeking relief under Penal Code section 1203.4, which allows former probationers to move for a dismissal of their conviction upon successful completion of probation. Once the cases are dismissed, another provision, Penal Code section 4852.01, renders them ineligible for a certificate of rehabilitation if they are subsequently incarcerated. In contrast, former prisoners, whether incarcerated or not, face no such restriction. The separate requirements don’t violate the equal protection rights of former probationers given the rational basis for the distinction - as including probationers would create a large burden on state resources. id: 25506
Defendant presented newly discovered evidence (testimony of a
known but previously unavailable witness) of duress in a habeas petition that required reversal of the judgment and a retrial. Defendant was convicted at a retrial of murder on a theory that he aided and abated or conspired to commit a false imprisonment and the killing was a natural and probable consequence of the target crime. However, he presented newly discovered evidence in a habeas corpus petition showing that he
participated in the incident under duress. The new evidence was the
testimony of Seriales, who was unavailable to testify at defendant’s first trial because he was facing murder charges himself at the time. Because his testimony was not available earlier, it constituted newly discovered evidence for the present purposes. Seriales’ testimony was consistent with defendant’s initial claim and the statements of other witnesses. It
seriously undercut the prosecution’s case. The judgment reversed and the case was remanded for a new trial.id: 20996
Trial court can consider the post-plea probation report when considering the section 17(b) request to reduce the felony to a misdemeanor.The trial court did not err in denying defendant’s motion to reduce his 2005 felony assault conviction to a misdemeanor under Penal Code section 17(b). Contrary to defendant’s claim, the trial court can rely on the post-plea probation report to understand the facts and circumstances supporting the conviction and exercise its discretion under section 17(b). Moreover, the fact that defendant successfully completed probation did not entitle him to relief - the facts and circumstances of the offense remain a relevant consideration.id: 24414
Following new legislation responding to the earlier opinions in defendant’s case, defendant who had been convicted of committing a lewd act on a child was not entitled to apply for a certificate of rehabilitation.In two earlier opinions, the court determined defendant, who had been convicted of a sex offense against a minor, was eligible to apply for a certificate of rehabilitation. Following those opinions, the Legislature amended the existing laws so that neither defendant nor a person convicted of committing a similar or more serious sex offense against a minor is eligible to apply for a certificate of rehabilitation. The court here was bound by the new law and defendant could not apply for a certificate of rehabilitation.id: 24429
The trial court did not err in denying defendant’s motion for a factual innocence finding where his earlier robbery conviction was modified to petty theft with a prior.In 2012, the court granted defendant’s habeas corpus petition finding the evidence was insufficient to support his 1997 robbery conviction because he did not use force when stealing the steak from the grocery store. The trial court did not later err by denying defendant’s motion for factual innocence under Penal Code section 1485.55, subd.(b) because the evidence supported another offense - petty theft with a prior, and given defendant’s strikes he would likely have received a three strikes sentence.id: 24366
The trial court erred in granting the factual innocence petition where there was reasonable cause to believe the defendant nurses abused or neglected the patient before he died.Defendants, a licensed vocational nurse and a registered nurse, were charged with dependant adult abuse likely to produce great bodily harm in violation of Penal Code section 368. The jury acquitted both defendants at trial, and a trial court later determined they were factually innocent under section 851.8. However, the court erred in granting the factual innocence motions as there was reasonable cause to believe they committed the charged offense. One defendant improperly replaced a breathing tube without consulting a doctor. The other failed to respond to signs of distress and did not call for transport to the emergency room until after the patient was dead. id: 21142
The trial court lacked the authority to issue a certificate of rehabilitation for a Michigan conviction. The superior court lacked jurisdiction to order a certificate of rehabilitation regarding a Michigan conviction because only Michigan has the power to pardon persons convicted of crimes in its state, and because defendant was statutorily ineligible for a certificate under California law due to the nature of his crimes which required registration as a sex offender.id: 24287
Defendant, who knew of his right to counsel at the hearing on his request for a certificate of rehabilitation, waived the right by appearing but leaving without participating in the hearing. Defendant argued the trial court erred by denying his petition for a certificate of rehabilitation under Penal Code section 4852.01 in his absence, after the bailiff allegedly told him the petition had already been denied, handed him the tentative ruling and sent him home. However, there was no evidence showing defendant was sent home. Meanwhile, while there was no appearance by defendant’s counsel (public defender) on the record, the record showed he was aware of his right to counsel, he arrived at the courthouse on the date of the hearing and left without participating. By doing so, he waived both his right to a hearing, and to counsel at the hearing.id: 24249
There is no equal protection violation in requiring defendant convicted of annoying a child to wait 10 years before seeking a certificate of rehabilitation even though child pornographers need only wait seven years. Defendant argued the trial court erred in denying his petition for a certificate of rehabilitation and pardon under Penal Code section 4852.03. He claimed there was an equal protection violation in requiring a 10 year waiting period for those convicted of annoying a child since there is only a seven year waiting period for those convicted of producing child pornography. However, the groups were not similarly situated even though both had sex offender registration requirements and there was no equal protection violation.id: 23785
Defendant who had his felony priors reduced to misdemeanors and then dismissed was not eligible for a certificate of rehabilitation.Defendant successfully petitioned the superior court to reduce two prior felonies to misdemeanors and dismiss them pursuant to Penal Code section 1203.4. He later moved for a certificate of rehabilitation under section 4852.01. However, the trial court properly denied the certificate because that provision only applies to felonies and defendant’s priors had been reduced to misdemeanors “for all purposes.” Denying the petition did not violate equal protection principles since people whose felonies were reduced and dismissed are not similarly situated to those who remain felons after completing probation or parole.id: 23874
Setting aside a conviction pursuant to section 1203.4a does not relieve the defendant’s responsibility to register as a sex offender. The trial court granted defendant’s petition to set aside his lewd act with children convictions, using the Penal Code section 1203.4a process. However, the vacation of the guilty pleas and dismissal of the complaint pursuant to section 1203.4a did not relieve him of the section 290 registration requirement. He can only obtain that relief by the means set forth in section 290.5.id: 23561
The trial court erred by reducing defendant’s felony charges to misdemeanors without giving the prosecution notice.The trial court erred by reducing defendant’s convictions to misdemeanors without giving the prosecution two days notice as required by Penal Code section 123.3, subd.(b)(1). Even though defendant’s performance on probation may have been exemplary, the prosecution was entitled to notice.id: 23603
Application of the amended section 1203.4, denying relief for section 288 convictions did not violate the terms of defendant’s plea bargain.Defendant moved for the dismissal of certain sex offense convictions after he successfully completed probation. He argued he was entitled to dismissal of his conviction for violating section 288, subd.(c) on the theory that section 1204.3 relief was an implicit term of his plea bargain, which must be honored despite the 1997 amendment to section 1203.4 prohibiting the dismissal of section 288 convictions. However, a probationer’s entitlement to relief under section 1203.4 is not frozen at the time of the probationary grant but is subject to subsequent legislative amendments to the statute. id: 23639
The trial court’s denial of a request for compassionate release was not appealable. The trial court’s denial of the request for a recall of defendant’s sentence which was initiated by the Department of Corrections and Rehabilitation under the compassionate release provision set forth in Penal Code section 1170, subd.(e) was not an appealable order.id: 23203
Magistrate’s finding that the evidence was insufficient to go forward was not the equivalent of a factual innocence finding. At the preliminary hearing, the magistrate dismissed the continuous sex abuse of a child count finding insufficient evidence based on inconsistencies in the victim’s testimony. Principles of collateral estoppel did not require a trial court to then find defendant was factually innocent. Moreover, the trial court did not use too rigorous a standard in denying defendant’s petition for factual innocence under Penal Code section 851.8. The court’s reference to “no doubt whatsoever” overstated defendant’s burden but this was a single line of a lengthy oral ruling where the court recited the correct standard of “no reasonable cause” and explained it was not convinced defendant was factually innocent.id: 23090
The trial court had no authority to dismiss the action under section 1385 after the judgment had been imposed and the defendant had served his sentence.14 years after pleading guilty to a theft offense, and 12 years after having completed his sentence, defendant invited the trial court to dismiss the action in the interest of justice pursuant to Penal Code section 1385. However, the trial court had no authority to dismiss the action under section 1385 in that circumstance.id: 23002
A defendant is not eligible for relief when his probation is terminated early after a violation of probation.Penal code section 1203.4 provides that when a defendant has fulfilled the conditions of probation for the entire probationary period, her or she is entitled to have the verdict changed to not guilty and to have the proceedings expunged from his record. A defendant whose probation is terminated early does not have a right to relief under section 1203.4, without regard to the failure to fulfill probation conditions.id: 22973
The trial court had discretion to consider evidence regarding a conviction that was set aside under Prop 36 when deciding whether to grant a certificate of rehabilitation.Defendant moved for a certificate of rehabilitation regarding drug convictions in 1989 and 2000. The prosecution opposed the petition based on defendant’s more recent nonviolent drug offense in 2007 for which he received the benefit of Prop 36 probation. Defendant argued, and the trial court agreed, that because the 2007 conviction was set aside after he successfully completed the Prop 36 probation, the offense could not be considered on the issue whether to grant the certificate of rehabilitation. However, the trial court had the discretion to receive evidence regarding the conduct that resulted in his arrest and conviction for the 2007 offense. The trial court abused its discretion in granting the certificate of rehabilitation.id: 22981
The trial court did not err by denying defendant’s request for a certificate of rehabilitation based on his refusal to admit that he committed the sex crimes.Defendant applied for a certificate of rehabilitation and pardon under Penal Code section 4852 after he successfully completed his term of probation. He was an ideal candidate for such a certificate except for one thing - he denied having committed the crime in the first place. The trial court did not abuse its discretion by denying the request for the certificate based on defendant’s refusal to admit guilt.id: 21882
Finding of insufficient evidence to bind over for stalking after the preliminary hearing did not require that the trial court grant the petition for a finding of factual innocence.Even though the magistrate found the evidence of stalking was insufficient to bind defendant over for trial, the trial court properly denied defendant's petition for a finding of factual innocence under Penal code section 851.8. While it could not be established that it was the defendant's voice on the cell phone recording in question, various witnesses testified they believed it was her voice and this testimony coupled with defendant's evasive behavior during the investigation supported the denial of defendant's motion.id: 21141
Petitioner’s claim of factual innocence made more than two years after the charges were dropped was untimely.Defendant petitioned for a determination of factual innocence under Penal Code section 851.8, but the trial court rejected the petition as untimely. Contrary to defendant’s claim, the two year statutory limitations period imposed by section 851.8, subd.(l) applied to petitioners like him who had charges lodged against them, but were not convicted. id: 20921
Since defendant's plea was made largely because of a promise of eventual section 1203.4 relief, the court erred by applying a law enacted later which prevented such release. Defendant pled guilty to a charge of lewd acts under Penal Code section 288, subd.(a) based on the promise that he could receive expungement relief later under section 1203.4. The trial court violated his due process rights by applying a provision, enacted after his conviction, that made relief under section 1203.4 unavailable to someone convicted of section 288.id: 19650
Trial court may reduce a wobbler to a misdemeanor under section 17 (b) despite the admission of a GBI enhancement. Defendant sought to reduce his wobbler assault conviction to a misdemeanor under Penal Code section 17, subd.(b), but the court refused because it believed the great bodily injury enhancement made the offense a felony for all purposes. However, a trial court may reduce a wobbler to a misdemeanor under section 17,
subd.(b)(3) despite the admission of such an enhancement.id: 19647
California's requirement of five year residency in order to obtain a certificate of rehabilitation did not violate defendant's constitutional right to travel.Defendant, an Arizona resident, argued California's certificate of rehabilitation provision (Penal Code section 4852.01 et seq.) violated his constitutional right to travel by requiring five years of residency, thereby providing disparate treatment of resident and nonresident ex-felons. However, California has a legitimate interest in requiring five years of residency in order to evaluate the conduct critical to a determination of whether a defendant is entitled to a certificate stating that
he or she is rehabilitated and worthy of a pardon.id: 19179
The waiting period to reapply for a certificate of rehabilitation is calculated from the date the initial certificate was denied.Defendant pled guilty to a sex offense in 1989. In 2004, he sought a certificate of rehabilitation under Penal Code sections 4852.01 and 4852.06 which would have allowed a gubernatorial pardon and relief from the sex offender registration requirement. The request was denied. The waiting period to apply for another certificate commences, not 10 years from the date of the offense as defendant argued, but five years from the date the initial certificate of rehabilitation was denied.id: 19135
Provision preventing expungement in child molest cases was not punitive and did not violate ex post facto principles.Defendant who was denied expungement of his conviction by an amendment to Penal Code section 1203.4, enacted after he pled guilty, was not subjected to an ex post facto law because the provision was not punitive in intent, nature or effect.id: 15383
No equal protection denial in preventing expungement for child molesters while the procedure remains available to convictions involving other serous offenses.Defendant argued the amendment to Penal Code section 1203.4 which prevents expungement of child molest convictions denies equal protection of the law since people convicted of other heinous offenses, including murder, mayhem, and rape can still obtain the benefit of expungement. However, under the rational basis standard both the high rate of recidivism for child molesters and the particular interest society has in protecting its children justify the different treatment of those convicted of molesting children.id: 15275
Trial court lacks the statutory authority to modify a verdict to a lesser related offense.A trial court considering a Penal Code section 1181 motion to modify a verdict on the ground that it is contrary to the evidence is limited to three options specified in the statute: 1) It can set aside the conviction and grant a new trial; 2) It can deny the motion and enter judgment on the verdict reached by the jury; or 3) It can modify the verdict to a <U>lesser included</U> offense. The trial court in the instant case exceeded the statutory authority of section 1181 when it modified the jury's residential burglary verdict to the <U>lesser related</U> offense of receiving stolen property.id: 12135
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245