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What Are Some Post Conviction Options to Consider?

The Gist of this Article: This article lists out and briefly explains 24 post-conviction options to consider to change, modify or mitigate the effects of a conviction.
The following list of post-conviction options is not exhaustive, however, it should give the reader a general idea of some of the post-conviction options his or her loved one may consider, or if eligible and having a well-supported position, pursue.  The order of the option generally is chronological from earliest to latest.

      1.  Motion for New Trial.

A motion for new trial must be filed prior to sentencing.  This is a request for the case to be reheard before another jury due to various reasons, including, but not limited to, new evidence, prosecutorial misconduct or improper jury conduct.

      2.  Motion to Withdraw Plea.

A motion to withdraw a plea usually must be filed before judgment is entered or within six months of defendant being placed on probation.  However, even after such deadlines, a judge has discretion to withdraw the plea.

The general rule is that a judge may accept a motion to withdraw a plea upon “good cause shown.”

      3.  Motion to Vacate Conviction Based on Faulty Immigration Advice (Penal Code § 1473.7).

This motion can be filed at any time.  The gist of the argument made in such a request is that the judge should order the conviction vacated because either prior counsel or the interpreter committed a prejudicial error by failing to inform defendant of the adverse immigration consequences of the plea.
Torrance CourthouseTorrance Courthouse

      4.  Direct Appeal.

A direct appeal in a felony case must be filed through first filing a notice of appeal within 60 days of entry of judgment. 

An appeal challenges the rulings that occurred in court during the course of the case, including before the preliminary hearing, at the preliminary hearing, on motions and of course, during trial.

     5.  Petition for Writ of Error Coram Nobis.

A petition for writ of error coram nobis, as provided at Penal Code § 1265(a), is often thought of as a motion to vacate a judgment.  Many coram nobis writs deal with improperly obtained guilty pleas.  The petition is not for challenging legal errors that may have taken place at trial.

However, a writ of error coram nobis may be used to challenge a prior conviction used to enhance a sentence if defendant’s prior conviction resulted from a guilty plea induced by misstatement of the judge or prosecutor (duress or fraud) or significant new evidence come to light after the judgement.  See People v. Goodrum (1991) 228 Cal.App.3d 397. 

However, the petition may be denied for undue delay in bringing it after knowing of the need and for delay in developing the facts.  People v. Kim (2009) 45 Cal.4th 1078, 1098.

      6.  Petition for Resentencing under Penal Code § 1170.95 (SB 1437)

A person who was convicted of or entered into a plea bargain based on being liable for “felony murder” or “murder under a natural and probable consequences” theory may file a Petition for Resentencing under Penal Code § 1170.95 if that person would not have been convicted under the new felony murder law, as changed by Senate Bill 1437 and codified at Penal Code §§ 188 and 189.  This includes someone convicted of or pleading to first or second-degree murder.

Senate Bill 1437 does not apply to or change the law on attempted murder or manslaughter.

There is no deadline to file a Petition for Resentencing under this new law.

      7.  Motion for Resentencing (“MFR”)

A motion for resentencing actually includes two different types of requests.

First, and less commonly used, under Penal Code § 1170(d)(1), a trial court judge may, within 120 calendar days after the date of commitment, recall a prison commitment or felony county jail sentence under Penal Code § 1170(h) (AB 109).  The new sentence cannot be greater than the original sentence. 

Although a defendant has no standing to bring a motion to recall his or her sentence (People v. Chlad (1992) 6 Cal.App.4th 1719, 1724), he or she may informally request that the trial court initiate § 1170(d)(1) proceedings (see Dix v. Superior Court (1991) 53 Cal.3d 442, 465 n17).

Second, there is the more traditional motion for resentencing, or MFR, which is a request for the judge who sentenced defendant to change the sentence based on new evidence, new law or significant new mitigating circumstances.  It can also be presented to the judge based on a sentencing error, an illegal sentence (i.e.,  it violated SB 1437 (above), Prop 47, Prop 64 (regarding marijuana) or Prop 36 (the new law regarding sentencing for a third strike)), or to remove the risk of deportation or other adverse immigration consequences (i.e., defendant was convicted of an “aggravated felony” under federal immigration law).

      8.  Application for Commutation of Sentence

An application to commute (reduce) a sentence is made to the Governor.  If the request is successful, the prisoner will be either released or eligible for parole.
Governor Brown, while in office, commuted over 150 sentences while he was in office.  He also pardoned over 1,100 inmates.  Of the over 150 commuted sentences, 20 were for murder.

The Governor will primarily look to see evidence that the person is fully rehabilitated and how he or she behaved in prison.  The Governor can consider whether the applicant has job prospects, housing and other support upon release.

      9.  Petition for Resentencing under Penal Code § 1170.91(d)(1) “In the Interests of Justice”

Resentencing under Penal Code § 1170(d)(1) may occur when the judge, on his or her own and within 120 days of sentencing after a plea or verdict at trial, decides to order a new sentence or at any time when the Board of Parole Hearings recommends a resentencing.
An attorney can contact the Board of Parole Hearings to suggest resentencing. 

According to Unite the People, the Board of Parole Hearings recommended more than 300 sentences be reduced in just June, July and August, 2018. 

      10.  Petition for Resentencing under Penal Code § 1170(d)(1) (SB 1391)

Senate Bill 1391 amended Welfare & Institutions Code § 1391, effective January 1, 2019 to prohibit prosecutors from prosecuting children under age 16 in adult court.  Instead, prosecutors may only proceed against such children in juvenile court, which generally has far, far shorter sentences.

However, the applicability of 1391 to someone already in state prison is limited to someone who still has a pending appeal.  If the sentence is already final, a petition for resentencing under 1391 would be untimely.

A judgement or sentence is final 90 days after an appellate court, upon reviewing a trial court ruling, sends the case back to the trial court (remands the case) or 60 days after the time to file a notice of appeal on the trial court judgment or sentence.  In the context of an appeal to the U.S. Supreme Court in the form of writ or certiorari, a judgment or sentence is final 90 days after a remitter is issued from the appellate court.

      11.  Petition for Resentencing under Penal Code § 1170(d)(2)

A prisoner convicted of felony murder or aiding and abetting a murder may petition for resentencing under Penal Code § 1170(d)(2) if that person was under 18 years of age at the time of the crime, was sentenced to life in prison without the possibility of parole (LWOP) and has served 15 years of the sentence.  

      12.  Application for Youth Offender Parole Hearing (SB 260/261/394/1308)

Senate Bill 260 provides for special parole hearings for someone that was convicted of a crime that was committed when the person was under 18 years of age.  The bill requires the parole board “to give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.”  See, i.e., Graham v. Florida (2010) 560 U.S. 48,130 S. Ct. 2011. 176 L.Ed.2d 825; Miller v. Alabama (2012) 567 U.S. 460, 132 S. Ct. 2455, 183 L.Ed.2d. 407.

Senate Bill 261 expanded Senate Bill 260 to apply to anyone who was convicted of a crime when under age 23.

The law has been further expanded to one under age 26 when he or she committed the crime.

      13.  Petition for Writ of Habeas Corpus (Request for Franklin Hearing)

A request for a Franklin Hearing can be presented to the court as a petition for writ of habeas corpus.  In People v. Tyris Lamar Franklin (2016) 63 Cal. 4th 261, the California Supreme Court held that a person sentenced to a lengthy prison term for a crime committed while age 26 or under must have had the opportunity to present, during trial, the kinds of evidence that would be relevant at a future youth offender parole hearing, although such a hearing may not take place for 15, 20 or 25 years.

In People v. Michael Damion Jude Medrano (2019 DJDAR 9612), it held that the right to a Franklin proceeding can be denied because the trial court record shows that the offender was given an adequate opportunity at sentencing to make a record of mitigating evidence related to his or her youth, but through choice or inadvertence did not.

The Fourth Appellate District seemed to appreciate the disappointment Medrano had in not getting a Franklin hearing and in response, offered some comments our reader may find valuable.  It noted that while a writ of habeas corpus would be an inappropriate procedural method for obtaining a Franklin hearing, a juvenile offender may file a motion under Penal Code § 1203.01 (and request the trial court exercise its power under Code of Civil Procedure § 187) for the purpose of making a record of mitigating and youth-related evidence.  In re Cook (2019) 7 Cal.5th 439, at 446-447 (Cook was a habeas case, but the court there recommended 1203.01 as an alternative).
      14.  Petition for Resentencing under PC § 1170.91 (AB 865)

Under Assembly Bill 865, a former serviceman in the United States armed forces may petition for resentencing on any felony conviction, whether by trial or by plea bargain, if that person may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse or other mental health problems as a result of his or her military service and such issues were not considered at time of sentencing.

      15.  Application for Resentencing under Penal Code §§ 1170(d)(1) and 12022.53(h) (SB 620)

Senate Bill 620 modified Penal Code §§ 12022.5 and 12022.53 to permit a judge to exercise his or her discretion “in the interests of justice” based on mitigating or extenuating circumstances in imposing the ten-year firearm enhancement that previously was automatically imposed upon defendants who used a firearm while committing one of nineteen crimes listed under 12022.53.

The new law is not retroactive.  This means it only applies to cases wherein the sentence is not final because the case is in some stage of appeal or awaiting the expiration of a period during which a sentence or judgement may be appealed.

To file an application for resentencing under Penal Code §§ 1170(d)(1) and 12022.53(h), one does need to first file a certificate of probable cause.  The court must find probable cause before hearing the application for resentencing.

      16.  Application for Resentencing under Penal Code §§ 1170(d)(1) and 667.5(b) to Vacate One Year Sentence Enhancement (SB 136)

Effective January 1, 2020, the one-year sentence enhancement applicable under Penal Code § 667.5 for defendant having served a prior prison term within five years is removed except for those defendants previously having served time in prison for a sexually violent predator-eligible (SVP) conviction.

This law, however, is not retroactive.  It only applies to cases wherein the sentence or judgment is not yet final.  

      17.  Application for Resentencing under Penal Code § 1170(d)(1) to Vacate Five Year Sentence Enhancement under Penal Code § 667(a)(1) (SB 1393)

Under Senate Bill 1393, judges now have the discretion to strike the five-year sentence enhancement applicable under Penal Code § 667(a)(1) for a prior serious felony conviction.  

This new law is also not retroactive and before defendant can apply for resentencing, a certificate of probable cause must be approved.

      18.  Application for Resentencing under Penal Code § 1170(d)(1) to Vacate Three-Year Sentence Enhancement under Health & Safety Code § 11370.2 (SB 180).

Effective January 1, 2018, Senate Bill 180 amended Health & Safety Code § 11370.2 to remove the three-year sentence enhancement for someone convicted of a second or greater drug offense. 

This law is also not retroactive, so it would apply only to cases wherein the sentence or judgment is not final.  

      19.  Application for Resentencing under Penal Code § 1170(d)(1) and 667(e)(2)(c) (Prop 36)

Effective January 1, 2012, Proposition 36 amended the Three Strikes Law to impose less severe sentences for “Third Strike” offenses that are non-violent and non-serious offenses. Penal Code § 1170.26(b).

While this law has been in place over eight years, there are still prisoners who have not exercised their rights to request resentencing on a “Third Strike,” usually because they are unaware that their indeterminate sentence of 25 years (or more with enhancements) to life is eligible for review.

This law is retroactive.

      20.  Application for Resentencing under Penal Code § 1170(e) Due to the Poor Health of the Inmate

When a prisoner is terminally ill and expected to die within six months and the release of the prisoner would not endanger public safety, that prisoner can seek resentencing under Penal Code § 1170(e). 

The judge can also recall the resentence if defendant is permanently medically incapacitated, i.e., in a coma or requiring 24 hour-per day care.

      21.  Application for Elderly Parole Hearing.

When an inmate reaches age 25 and has served 20 years of continuous incarceration, that inmate can request a “parole suitability hearing.”  To be eligible for such a hearing, an inmate may not be serving a sentence of death or life without the possibility of parole.  In other words, even inmates serving a life sentence with the possibility of parole are eligible. 

      22.  Petition for Writ of Habeas Corpus in California State Court (not requesting Franklin Hearing).

A petition for writ of habeas corpus seeks to overturn a conviction, reverse a conviction and have a new trial, seek a new sentence or challenge a condition of custody or even parole or probation as unlawful.  Penal Code § 1473.

It is important to appreciate that it does not appeal a finding of guilt.  Instead, it argues that there was a problem in the proceeding such as to merit a prisoner’s release from custody, new trial, etc.

It is regarded by judges as something of a last attempt at freedom, not a first option as many movies and books portray and glamorize it.  

      23.  Petition for Writ of Habeas Corpus in U.S. District Court (federal court)

A federal writ of habeas corpus is the final avenue for review of claims of Constitutional violations or violations of federal laws or treaties that were denied in California state court.  A petition challenging a state court decision on the merits is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 

Such claims most commonly involve a Fifth Amendment (right to remain silent), a Sixth Amendment (ineffective assistance of counsel, right to confront witnesses), an Eighth Amendment (excessive punishment) and / or a Fourteenth Amendment violations.  Fourteenth Amendment violations are often categorized as either due process or equal protection claims.

Federal writs of habeas corpus must be filed within one year after the 90-day period expires following a final ruling by a state court.  28 U.S.C. § 2244(d), Federal Rules of Civil Procedure, Rule 6(a)(1).  

      24.  Application to Governor for Pardon.

An application for a pardon, as provided at Penal Code § 4853, can be made two ways.  The first way is after one has been found rehabilitated through an application for a Certificate of Rehabilitation, or “COR,” as provided at Penal Code §§ 4852.01 – 4852.21.  A COR request can be quite simple and quickly sought, but it also can take a great deal of time to prepare, depending upon the criminal history of the individual and the degree of detail that the applicant needs to provide or wishes to describe. 

Those convicted of certain crimes are not eligible for a COR.

A direct application for an executive branch pardon is granted only in exceedingly rare circumstances, however, it should be noted that Governor Brown pardoned over 1,100 inmates while he was in office.  It should really only be made if all other options fail.  Those who are convicted of certain crimes are not eligible for a pardon.

However, it is worth noting that no period of rehabilitation is required to be shown for a pardon, whereas there is a minimum of five years required for a COR (plus more for certain sex offenses), and there is no requirement that one be a California resident at the time of the application, whereas this is required for a COR.

For more information about post-conviction issues, please click on the following articles:

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