Post-Conviction Relief

Penal Code § 1473.7 allows you to vacate a California conviction or sentence after you are no longer in criminal custody or on probation. Unlike an expungement, a successful § 1473.7 motion will vacate the conviction or sentence for immigration purposes because it is deemed legally invalid (i.e. not based on your rehabilitation). However, if you are no longer in active removal proceedings, you will likely need to reopen your immigration proceedings for your vacatur under § 1473.7 to have effect. There are two ways to qualify.

First, you can qualify if:

• Your lawyer did not tell you about the immigration consequences of your plea;
• Your lawyer did not defend you from those consequences by plea bargaining for an immigration-safe alternative; or
• You yourself did not understand the immigration consequences.

Second, you can qualify if you have new evidence of actual innocence. Such evidence might include:

• Results of new scientific tests, such as DNA testing;
• Another person admitting to the crime; or
• The discovery of facts that call key evidence into question — such as widespread fraud or contamination by the police or a crime lab.

You can file any time after you are released from custody (and are no longer on probation or parole). The motion will be considered timely if it is filed without undue delay.

The California Racial Justice Act (RJA) prohibits the state from seeking or obtaining a criminal convictions based upon race, ethnicity or national origin. Currently, it only applies to final judgments rendered after January 1, 2020.

The RJA makes it possible for a person charged or convicted of a crime to challenge racial bias in their case on the following basis:

• A judge, attorney, law enforcement officer, expert witness, or juror exhibited bias or animus toward a defendant in the form of blatantly racist statements (inside or outside of court);
• A judge, attorney, law enforcement officer, expert witness, or juror used racially discriminatory language or exhibited bias toward a defendant during proceedings (even if coded language);
• Statistical evidence shows systemic bias in the charging and sentencing that relates to a defendant’s charges or sentence.

If a court finds an RJA violation before judgment has been entered, it can declare a mistrial, empanel a new jury, dismiss enhancements, special circumstances, and special allegations, or reduce one or more charges. If a court finds a RJA violation after judgment, it can vacate the conviction or sentence and order new proceedings, modify the judgment, or vacate and impose a new sentence—none of which can result in a sentence greater than the original.

As of January 1, 2022, SB 483 made the repeal of sentencing enhancements adding three years of incarceration for prior drug offenses and one year for each prior felony jail terms retroactive. In practice, SB 483 now authorizes courts to recall and resentence individuals currently serving time under these enhancements.

To be eligible, an individual must have a drug enhancement under H&SC § 11370.2 or a prison prior enhancement under PC § 667.5(b) as a part of their sentence.

The California Legislature recently amended Penal Code 1170.91 to apply to veterans currently serving a sentence for a felony conviction. Under Penal Code 1170.91(b)(1), a person who was a member of the United States military, and who may be suffering from a mental illness as a result of his or her military service, may petition for a recall of sentence. The requirements which must be met are:

(1) The circumstances of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems, was a result of the person’s military service;

(2) The mental illness that resulted from his or her military service was not considered as a factor in mitigation at the time of sentencing; and

(3) The person was sentenced prior to January 1, 2015.

If you were convicted of certain California felony crimes, you have a chance of getting them reduced to a misdemeanor. In California, there are several “wobbler” crimes—meaning a criminal case can be filed as either a misdemeanor or felony offense.  Under Penal Code § 17(b), a “wobbler” can be changed by a judge from a felony crime to a misdemeanor crime if you are eligible. In order to be eligible for reduction, you must have been:

• Convicted of a “wobbler;”
• Granted probation (including paying all fines); and
• Not sentenced to serve time in a California state prison or received a suspended sentence.

Only “wobbler” offenses are eligible for reduction, not traditional felonies. Some common examples of California “wobbler” offenses include: PC § 459 – Burglary, PC § 487(a) – Grand theft, PC § 245 – Assault with a deadly weapon, PC § 422 – Criminal threats.

Importantly, reductions under § 17(b) can be helpful for immigration purposes (depending on the offense) but usually require a reduction order to specify the new sentence carries a “maximum potential sentence of 364 days.”

California’s Youthful Offender Parole Hearing laws allow many inmates who were 25 years old or younger when they committed their crimes to qualify for early release on parole. Some youthful offenders can qualify during their 15th, 20th, or 25th year of incarceration. The number of years depends upon the length of the sentence the inmate received. The laws are complicated and have many exceptions, but they are designed to give eligible youthful offenders a meaningful opportunity for release. Youthful offender laws recognize that the part of the brain that controls behavior continues to develop during a person’s mid- to late-twenties.

During a youthful offender parole hearing, the Parole Board must take into consideration the reasons why youthful offenders are not as culpable as adults. It must also consider the hallmark features of youth such as impulsivity, risk-taking, vulnerability to negative influences and pressure, and the capacity to change as youthful offenders get older. The Board also reviews what the youthful offenders have done to demonstrate how they have changed. Examples include self-reflection, participating in educational and personal development opportunities, positive conduct, remorse, and recognition of their own worth and potential. Family members and others who know about the youthful offender’s circumstances at the time of their crime or their growth and maturity can submit statements for the Board to review. If parole is denied, youthful offender factors can move the date of the next hearing up. If release on parole is granted, release occurs when all reviews are completed (approximately five months later).

Review your case file to gather the information listed below. If you do not have your case file, you can print a free summary of your case at: https://sonoma.courts.ca.gov/online-services/case-portal

Information Needed:

1. Date of Conviction or Disposition
2. Type of Violation (Code and Section number) g., PC 487(a), VC 23152(a) or HS 11357
3. Type of Offense (felony, misdemeanor or infraction)
4. Whether your case is eligible for reduction from felony to misdemeanor or from misdemeanor to infraction

You are generally eligible for some type of expungement relief if you are not currently on probation or parole in any County, you are not charged with the commission of any crime, and you are not currently serving a sentence of any kind. If you meet this criteria then refer to the chart below:

CR-180

• In the top section of form CR-180, write your full name as shown in your case file, your current address and contact information.
• By “DEFENDANT”, write your name as shown in your case.
• By “DATE OF BIRTH”, write your date of birth
• By “CASE NUMBER”, write your Case Number

• In Section 1, write the date of conviction or date of deferred entry of judgment found in your case summery

• Read sections 2 through 7 and only check the boxes that apply to your situation. Likely, you will check one section and leave the rest blank
• Check box #2 if you were convicted of a felony or misdemeanor and granted probation. Check a, b or c, as applicable. If you had violations of probation, did not complete probation successfully or were not discharged early from probation, then check box '"c.'"
• You may write a declaration (form MC-031) explaining why a dismissal would be in the interests of justice. Please see attached Sample Declaration. You may also include letters of reference, certificates of completion or any other relevant documents that support your request for a dismissal.

• On the top of pages 2 and 3, be sure to write your full name as shown in your case file and your case number

• Check box #3 only if you were convicted of a misdemeanor or infraction and not granted probation and check a or b, as applicable.

• Check box #4 only if you have clear and convincing evidence that your conviction for solicitation or prostitution was the result of your status as a victim of human trafficking.

• Check box # 5 only if you served a felony county jail sentence under PC 1170(h)(5) which is a local prison sentence served in County jail or if you were sent to State prison.
• If you were sentenced to County jail with mandatory supervision and more than a year has elapsed since you completed your sentence, then check “a.”
• If you were sentenced to County jail without mandatory supervision or to State prison and more than two years have elapsed since you completed your sentence, then check “b.”
• You may complete a declaration (form MC-031) where you explain why granting a dismissal would be in the interest of justice. Please see attached Sample Declaration. You may also include letters of reference, certificates of completion or any other relevant documents that support your request for dismissal.

• Check box #6 only if you were sentenced to state prison, but you would have been eligible for a felony county jail sentence after 2011.
• You can explain why your petition should be granted in the interests of justice. Please see attached Sample Declaration. You may also include letters of reference, certificates of completion or any other relevant documents that support your request for a dismissal.

• Check box #7 only if you successfully completed a deferred entry of judgment program and check a or b, as applicable

• Date and sign the form along with filling out your complete address

CR-181

• Next, on form CR-181, fill out the information in the top boxes of page 1 and page 2. Write your full name as shown in your case file, your current address and contact information, Date of Birth and Case Number.
• Do not fill out the information below the boxes, as the court will fill out the rest of the form to make orders.

Make two copies of your completed CR-180 and attachments. You may bring your completed forms in person to the District Attorney's Office and have them stamp-receive a service copy. Alternatively, have someone else, other than you, who is over the age of 18, serve 1 copy to the District Attorney's Office by mail. The adult that served the District Attorney's Office must complete a Proof of Service form (form CR-106).

You should have an original and a copy of the completed CR-180 (with attachments) and CR-181. Make a copy of the completed Proof of Service (form CR-106), which was signed by the person who served the copies to the DA’s office, and gather all the forms to file with the court.

To file in person, go to Criminal Clerk’s office of the Sonoma Superior Court located at 600 Administration Drive Room 105-J in Santa Rosa

Present the original and the copies. The clerk will stamp both sets of documents. The original will remain with the court and a conformed copy will be returned to you for your own records.

Or, you could file by mail, by sending your documents to the court, addressing the envelope to the Justice Center as the recipient. To ensure that the conformed copies will be returned to you, include a self-addressed stamped envelope in your package, so that the clerk can send your copies after filing your original documents.

Finally, there is a fee related to this filing, up to $150.00. If you are unable to pay costs and fees related to this filing, please complete form CR-105 in its entirety and file it along with this packet.

Once you file your documents, a judge will review your request. Depending on the facts of your case, a judge can approve or deny your request without a hearing. The judge also has the ability to set a hearing. If a hearing is scheduled, it is crucial that you appear on the day of the hearing or the court will likely deny your petition. If your petition is granted, you need to verify that you have paid any fees imposed by the court or you will not receive your certificate.

Fillable forms are available at: https://www.courts.ca.gov/forms.htm

•  Select "Cleaning Criminal Record" and download forms CR-106, CR-180, CR-181. If needed, download form MC-031 and/or CR-105.
• Hand printed forms using either blue or black ink will be accepted for filing as long as they are legible.