A criminal sentence for certain crimes does not end when you serve your jail sentence or pay court fines. A guilty verdict leads to a criminal record that causes severe collateral ramifications. Just because you have forgotten your previous mistakes does not mean potential employers, colleges, property managers, professional licensing authorities, and lenders will forget. Nowadays, these parties run background checks before signing leases or job contracts, hurting your chances of employment, receiving a loan, obtaining college admission, or signing an apartment lease contract.

Criminal convictions happen for various reasons, including an unfavorable plea deal or poor legal representation. If you are in this situation, do not worry. You can fix the problem by petitioning the court to vacate or set aside the guilty verdict and give you another chance to trial.

At the Monterey Criminal Attorney, we understand the Penal Codes for vacating/setting aside a conviction, making us the most suitable to give you a clean slate and leave your past mistakes behind.

Vacating a Conviction at a Glance

California statutes define vacating a conviction as nullifying a guilty verdict, withdrawing an unfavorable plea, or setting aside a judgment. The court withdraws a plea or judgment or grants a fresh trial after you petition or lodge a petition to vacate. In the petition, you request the court to set aside a previous conviction to make it appear like the initial trial never happened, giving you a chance for a fresh trial. You should not assume a set-aside conviction will automatically result in a dismissal of your case or an excuse from criminal liability for your past mistakes, as you could still face legal implications depending on the case’s circumstances. Instead, it is an opportunity for another criminal process for the exact charge. However, after setting aside a guilty verdict, the prosecutor can drop or reduce your charges upon evidence evaluation. Your attorney must submit compelling facts; otherwise, regretting your action is insufficient to persuade the prosecutor not to refile the exact charges.

Vacating a guilty verdict is different from case dismissal. Vacating means withdrawing a guilty or nolo contendere ruling for a new court process or dismissal. In contrast, a dismissal means dropping the entire case. Besides, dismissal happens before the sentencing stage, while setting aside happens after sentencing.

When seeking post-conviction relief, you need legal grounds and sufficient evidence. Without sufficient backing, the judge will dismiss your motion to put aside a guilty verdict and instruct that you continue with your sentence.

Grounds For Your Motion to Vacate

The process of vacating a conviction is complex but offers immense benefits depending on your eligibility and conviction’s nature. Therefore, if you want to lodge a successful motion, you must retain the services of a competent attorney with knowledge of various ways of obtaining post-conviction relief. The legal representative will analyze your charges and determine the best grounds for your motion. Different statutes provide grounds for the vacating motion, including PEN 1018, PEN 1016.5, and PEN 1473.6.

California PEN 1018

One of the statutes that provides you with grounds for a vacation petition is PEN 1018. Otherwise known as the plea withdrawal petition, PEN 1018 lets you withdraw a guilty or nolo contendere judgment and enter a not guilty plea. When the court grants your petition, they delete the guilty verdict, and the prosecutor files the exact charges again. 

Alternatively, you can file the motion under PEN 1018 after sentencing or a guilty verdict. However, if this is your situation, for the court to accept your motion under this statute, you should file it before sentencing or half a year of your probationary term.

If the court confines you in jail or prison before the motion, you are ineligible to file under this statute unless under a special exception. The only exception is if you file a Writ of Habeas Corpus motion demonstrating that the guilty verdict was unlawful. The petition to the court to let you withdraw your plea must be filed where the previous hearing happened.

The court rarely withdraws a guilty or no-contest plea. Therefore, when they give you a chance for a new trial, your attorney must present mitigating factors to compel the court to reduce your charges, dismiss them, or impose more lenient penalties.

The assertions you can make to compel the court to withdraw your plea are:

You Lacked Legal Representation During the Plea

California laws require that when entering a plea, you do it knowingly, intelligently, and without coercion. Your lawyer should take time to explain the terms of the plea and encourage or discourage you from signing it. So, when you enter a plea without legal representation from a public or private defendant, you did not act freely or intelligently, meaning you are eligible for a plea withdrawal under PEN 1018. However, the lack of legal representation alone will not compel the court to grant your petition.

You must prove that your self-representation in the case was not deliberate or willful. If the court informs you of your right to a private lawyer or a court-appointed public defender if you cannot afford one, they will dismiss your petition if you proceed to represent yourself nonetheless. The court has no responsibility to withdraw your plea or guilty verdict if you were aware of your rights but proceeded without legal representation.

Your petition can only be successful if you do not know your rights when entering the plea. For example, you can assert that the officer did not explain your Miranda rights. Again, you can claim the judge did not corroborate if you understood your right to legal representation or could not afford one. Also, you will win the petition if you lack legal representation, which does not explain the consequences of pleading guilty or no contest.

Ineffective or Incompetent Legal Representation

Legal representation alone is not sufficient. You must have a competent attorney to provide guidance and representation. Public or private competent attorneys must explain your charge’s nature, possible penalties, and the defense strategies to prevent a guilty verdict. The attorney must also be experienced in negotiating a favorable plea deal that results in lenient penalties. A competent must:

  • Explain the consequences of a particular plea deal
  • Independently investigate the case
  • File and argue relevant motions
  • Submit mitigating circumstances for a charge reduction or lenient penalties
  • Discourage you from taking an unfavorable deal

If your lawyer fails to perform these responsibilities, prejudicing your case, they will grant your PEN 1018 motion.

Your argument for lack of proper guidance and adequate representation must be backed by evidence. You should show sufficient proof that the attorney’s performance was unreasonable. You can argue that the judge criticized your attorney’s tactics and knowledge of court rules or procedures. You can again conduct a background check on the attorney’s education to find evidence that they lacked ethical code knowledge or proper training. If the attorney’s poor performance led you to accept an unfavorable plea or a trial conviction, the court can grant you another chance for a new trial.

You Lacked Knowledge of The Plea Consequences

PEN 1018 allows you to withdraw a plea if you assumed you understood the terms or consequences, only to discover you were misled and that the consequences are not what you agreed to. However, for the court to grant your petition, you should show that you would have declined the deal if you were aware of all the details, including the penalties, when you signed. Thankfully, before a plea deal goes through, the judge must explain all the details and ensure the defendant understands and that the terms of the bargain are in the interest of justice.

The court assumes that you did not understand the ramifications of a plea bargain during the PEN 1018 motion if:

  • You are an alien, and a guilty plea for the offense will lead to severe immigration repercussions like removal or inadmissibility
  • A sentence will lead to compulsory jail or prison confinement
  • A guilty plea will lead to professional consequences like license termination or suspension
  • A sentence will lead to the requirement to enlist as a sexual offender

You or any other defendant would unlikely agree to a plea bargain with life-altering or severe consequences. Therefore, if you can show you could not have agreed to the deal if you knew of the severe consequences, the court allows you to withdraw the plea and stand trial afresh.

You Were Pressured to Take an Unfavorable Plea Deal

Another requirement for a fair plea deal is to take it freely. Therefore, the judge will be willing to withdraw an unfavorable plea deal if you show you were coerced, threatened, or lured to agree to the unfair bargain. The court concludes you were forced to enter the agreement if:

  • The court, prosecutor, or your attorney forced you into the deal
  • The officer threatened to hurt your immediate family if you did not plead guilty or no contest
  • Your co-accused threatened to hurt or kill your family if you did not take liability for the crime by pleading guilty

If your arguments are convincing, they will take back the unfair plea and give you another chance by starting the criminal process afresh. However, you can pursue other alternatives if the court rejects your petition under PEN 1018 or appeal the ruling.

California PEN 1016.5

A guilty verdict in California attracts legal penalties and collateral ramifications from a criminal record. For citizens, the collateral repercussions they fear include being denied job opportunities or professional licenses due to criminal convictions with a substantial relationship to the profession. However, for aliens or non-citizens, the collateral consequences are severe, particularly when a crime or moral turpitude is involved. Under these circumstances, a conviction will lead to deportation or being denied reentry into the country. The offenses whose guilty verdict will affect your immigration status are:

  • Drug offenses
  • Domestic violence
  • Spousal battery
  • Aggravated felonies
  • Firearm crimes
  • Moral turpitude offenses

Many prosecutors or triers of facts fail to mention or overlook immigration consequences when explaining the conditions and consequences of a plea bargain. So, many aliens take a plea bargain, unaware of how the decision will impact their immigration. You can submit a PEN 1016.5 petition in this position because you did not know it would lead to removal or inadmissibility when you agreed to it.

If there is no evidence from the prosecutor or court that you were informed of these consequences, they will assume you did not know, thus vacating the conviction.

Eligibility for the petition does not warrant a fair verdict from the court. Your attorney should demonstrate you could opt for another deal or reject it if you knew of the immigration repercussions. Even if the court did not explain the consequences but you knew of them, they will deny your application.

For example, when the court and prosecutor fail to discuss the potential immigration consequences of taking a particular deal, but you happen to be a paralegal with knowledge of immigration laws, they will not grant your motion to set aside a guilty verdict. You knew of the deal's consequences or conviction; hence, you are not entitled to another trial. 

When the court declines your motion and you complete your punishment, you can apply to have the felony charge reduced to a misdemeanor and then file for an expunction. 

California PEN 1473.7

Prejudicial errors or the discovery of new evidence can be grounds for vacating a guilty verdict or unfavorable plea deal. Per PEN 1473.7, a guilty verdict is legally unacceptable if new evidence is discovered that can exonerate you, the guilty verdict was because of racial discrimination, or there were prejudicial errors that made it impossible to comprehend, contest, or willfully accept the immigration repercussions of a guilty verdict.

PEN 1473.7 was enacted in January 2017. Before the law took effect, many aliens could not contest court verdicts or sentences because they were required to submit a writ motion, which was only possible while in confinement. Once a convict was released, they could not contest court decisions.

Many convicts only discovered after several years that a plea bargain they entered involved immigration repercussions like removal or inadmissibility. Even worse, there was no way of returning to court to request them to vacate the decision, even when they were unaware of the immigration consequences when taking the pleas. Discussed further are the grounds for vacating a sentence under PEN 1473.7:

  1. Prejudicial Errors

PEN 1473.7 enables convicts to petition if a sentence arrived through a prejudicial error. This error damages your capacity to comprehend, contest, or consciously welcome the immigration ramifications of a guilty or no-contest plea. Common prejudicial errors include:

  • Your lawyer failed to investigate the case and explain the possible immigration repercussions of taking a particular plea
  • The attorney failed to defend you against an unfavorable plea deal that could lead to immigration consequences instead of exploring other alternatives and favorable deals.
  • You lacked knowledge of or could not comprehend the potential immigration consequences

Your defense lawyer must investigate and advise on the immigration consequences a sentence attracts when you enter a no-contest or guilty plea. If your legal counsel did not do this, you can petition the court to vacate your plea and offer another opportunity for a fair trial.

Mentioning a few immigration repercussions is insufficient to prove your attorney sufficiently explained the conditions. Your lawyer must state the exact penalties for a particular plea for an informed decision.

  1. Discovery of New Proof that Can Prove Your Innocence

Besides, you can lodge a petition under this statute when new evidence is discovered that can demonstrate your innocence. Typically, a prosecutor files charges against you after arrest when the officer submits a file with the alleged crime and supporting evidence. If the evidence is compelling, the prosecutor agrees to file formal charges. However, when there is insufficient proof for a persuasive case, the DA returns the file for further investigation.

Police only conduct more investigations if the prosecutor demands it. Therefore, if the prosecutor agrees to file formal charges based on arrest evidence, the police will not conduct further investigations. As a result, they could miss out on crucial proof that could help prove innocence. Sometimes, this evidence is only discovered after a conviction. The proof includes:

  • A confession or admission of guilt from another party
  • New scientific tests and results, like DNA
  • Discovery of new case aspects that raise questions or doubts about the accuracy or legality of evidence used to secure a sentence.

When you submit a solid petition using the new proof, they will vacate the previous sentence and give you another trial. However, before this decision, you should demonstrate that:

  • The proof was unavailable in the trial
  • Your attorney could not access the proof before the end of the trial. If they could have accessed the discovery before the end of the case, they could have introduced it in later stages to influence the outcome. When this is your case, they will not grant your petition. However, the judge will vacate the sentence based on new evidence when your lawyer cannot access the proof while the case is ongoing.
  • The discovery confirms the already existing evidence that demonstrates your innocence
  • The discovery is solid and will change the court’s verdict

If you come across new evidence, you can bring it to court through a motion once you exit custody. Filing the motion will be beneficial, especially if you are already scheduled for a hearing in the immigration court.

  1. Your Sentence was because of Racial Discrimination

You have a right to a hearing to vacate your sentence if there is proof that the sentence the court imposed was motivated not by the case’s facts but by your ethnicity, race, or nationality. There is no timeline for submitting this motion, but you are advised to do it as soon as possible.

  1. PEN 1473.7 Motion Timeline

The best time for filing this motion is on the date you are set to appear before an immigration court or the day the removal injunctions become final.

The law states that the motion should be filed with reasonable diligence, meaning you must act without delays once you discover new evidence or reasons supporting a petition to set aside a sentence. You can also lodge the motion on the date of your naturalization or permanent residency proceeding. A petition under PEN 1473.7 should be heard in a court proceeding. You do not have to appear for the proceeding in person, as your attorney can show up for you.

If the court grants your petition, they will vacate the sentence, giving you a fresh chance to negotiate another deal that does not attract immigration consequences if the prosecutor does not agree to drop the charges. However, if you have a compelling attorney and solid evidence, the prosecutor will drop the case, eliminating the need for another hearing.

The Role of an Attorney In the PEN 1473.7 Motion

When applying to vacate a sentence, you should use a different legal representative because you risk a conflict of interest allegation that could adversely impact your petition. A new and experienced attorney will benefit your case in several ways. The benefits of  an attorney are:

  • They will conduct an independent investigation and cross-examine witnesses to understand the evidence resulting in your arrest and charges.
  • Provide legal representation and represent you in the court hearing
  • Help pick jurors for the case to prevent bias or unfairness in the verdict

Alternatives to Vacatinga a Sentence

If your motion under any of these grounds is successful, the judge will set aside your conviction. Sadly, not everyone with a criminal record can file this motion. Therefore, if your motion is denied or you are ineligible, you can explore other post-conviction reliefs like:

  • Expungement under PEN 1203.4
  • Rehabilitation certificate
  • A conviction evaluation or review
  • Governor’s pardon

Speak to your attorney if you are considering a petition to vacate a sentence or other post-conviction relief options.

Find a Competent Post-Conviction Relief Attorney Near Me

A guilty verdict affects your life past the legal penalties. Thankfully, California laws provide relief after sentencing to avoid the collateral consequences of guilty verdicts. One common relief is vacating or setting aside a conviction. It allows you to persuade the prosecutor to drop the case or file the charges afresh to avoid the consequences of an unfair conviction or plea deal.

If you seek a new trial and a chance to contest your claims fairly, you must hire a different attorney from the one representing you. At Monterey Criminal Attorney, we can help convince the court to vacate your sentence and represent you in the new criminal process for a fair verdict. Call us at 831-574-1791 for a no-obligation consultation.