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When Is Post-Conviction Relief Is Discretionary Under California Law?

By January 28, 2021 No Comments

While some types of post-conviction relief are mandatory – meaning that a California court must provide relief if a motion is filed requesting such relief – other post-conviction relief is subject to the court’s discretion and may be denied if a denial is warranted. California courts are not legally obligated to act when such relief is requested.

First and foremost, a post-conviction relief attorney may file a motion to vacate a conviction if newly discovered evidence has been uncovered that may raise questions about the lawfulness of a conviction. Further, California law requires that a guilty or “no contest” plea to any criminal charge is entered freely, knowingly, and intelligently.  However, this may be challenged when a defendant subsequently learns that he or she was unaware of all of the consequences of the plea, was coerced into the plea, or was represented by an incompetent attorney, or not represented by an attorney at all).

Another example where relief is discretionary is that available under California Penal Code § 1473.7. This allows former defendants who are no longer in criminal custody to file a motion to vacate a conviction or sentence if they present evidence that they did not understand the immigration consequences of a guilty or no contest plea.

California Penal Code § 1016.5 requires judges in criminal cases to advise defendants that a guilty plea may result in deportation if they are not a U.S. citizen. These individuals may petition a court for a vacated conviction if there is evidence that they did not understand this concept upon entering a guilty or no-contest plea due to being deficiently advised of their rights.

Finally, individuals with a felony or misdemeanor sex violation on their records who would not normally qualify for expungement due to state prison sentence or those who have had their felony or misdemeanor sex crime convictions expunged under Penal Code §1203.4 may request that a California court issue them a certificate of rehabilitation. California Penal Code § 4852.01 states that while these certificates will not eliminate a charge from a person’s criminal record, it may serve as evidence that an individual has positively changed their life for the purposes of seeking employment, housing, or terminating the need to register as a sex offender.

A California post-conviction relief lawyer may provide more information and answer questions about the various types of mandatory and discretionary post-conviction relief available in California. John Patrick Dolan is a California State Bar Certified Specialist in Criminal Law, the highest achievement awarded by the State Bar of California to attorneys in the field of criminal law. The advice, guidance, and representation of experienced criminal defense counsel may be crucial to achieving the best possible result in any criminal matter. John Patrick Dolan has forty years of criminal defense experience. Contact Dolan Law Offices today at 760-775-3739 or 562-824-4007 to discuss your situation or find out more online here.

When Is Post-Conviction Relief Is Discretionary Under California Law?