Post Conviction

Post-conviction can refer to any time after one has pled guilty or found guilty at trial.  Your case does not necessarily end after one has been to trial or pled – rather, there are some options one can pursue: 

1.  Appeal.  Sometimes the court makes a mistake or something went wrong legally prior to one taking a plea or going to trial.  Or, there was an error during trial.  If that is the case – the law allows someone to appeal their matter, that is, take their case up to the appellate court and raise the issue(s) that went wrong during their case at the superior court level.  Now note, an appeal is not re-litigating the facts in your case.  Rather, it is an avenue to litigate whether there were significant legal errors that substantially affected one’s rights at the trial level. 

Appeals are time sensitive.  So, once the judgment in trial court is entered, if it is a misdemeanor, one must file a Notice of Appeal within 30 days, and if it is a felony, 60 days.  Once the Notice is filed, your attorney will receive the record from the trial court to then start looking for legal issues in your case.  

There are a myriad of issues that can be litigated at the appellate level – for example – whether there was sufficient evidence to sustain a guilty verdict at trial, whether there was prosecutorial misconduct, or whether sentencing was correct.  The fact that there may be a legal error does not automatically mean one wins on appeal.  The legal error must also prejudice the defendant.  

Kristine Koo is on the appellate panel for the Central California Appellate Program in Sacramento.  The Third and Fifth Appellate Districts of California appoint her on appellate cases routinely.  She is well-versed in appeals and can help you if it is something you wish to explore. 

2.  Expungements.  In California, people who have been convicted of a felony or a misdemeanor may petition the court to expunge their record under PC 1203.4.  In order to qualify for an expungement, once must not have served time in state prison on their criminal case, and their probation is now completed.  That means that, if you are currently still on probation, you are not eligible for an expungement quite yet.  And, if you went to prison, you are not eligible for an expungement.  Plus, the court looks at successful completion of probation.  If you have violated probation – a hearing will be held to look at all the facts in your case.  

The main goal for expungements is job related.  Expunging one’s record of a crime allows people to truthfully state that they were not convicted of a crime when asked on a job application.  It releases the defendant from “all penalties and disabilities resulting from the offense of which they have been convicted.”  (See PC 1203.4)  

Note – there are certain cases that can never be expunged, despite never going to prison.  Such cases involve sodomy with a child, lewd acts with a child, oral copulation with a child, and statutory rape. 

Expungements involve a lot of paperwork and can be complicated depending on what the facts are in each case.  Contact Kristine Koo today to get your free consultation on expungements and to get more facts on how to petition the court on expunging your record. 

3. 17(b) Motion.  A 17(b) motion is a request asking the court to reduce a felony offense to a misdemeanor.  This can be accomplished if the felony that you were convicted of is a “wobbler.”  A “wobbler” is an offense that could be charged as either a misdemeanor or felony.  If you were charged with a felony that is a wobbler, you may have the opportunity to request the court to “17(b)” your case to a misdemeanor, and potentially then request to have the court expunge your misdemeanor.  

Besides the fact that your felony is a wobbler, you must have been granted probation to qualify for a 17(b) Petition.  Thus, if you went to prison, you won’t be granted any relief.  

One can bring a 17(b) motion at the conclusion of their preliminary hearing, at the time of sentencing, or once one’s probation has been completed.  Contact Kristine Koo today if you have questions on how to reduce your felony to a misdemeanor and see if your case qualifies.