How to apply for Prop 47 in California to reduce a felony to a misdemeanor without a lawyer

If you want to fill out a Proposition 47 Application/Petition yourself, which requests the court to reduce your former felony to a misdemeanor, it is easy to do if you have your prior criminal record available.  You will need the Case Number of the prior felony case, the formal name of the prior conviction, for example, Penal Code section 496, and the date of the conviction to fill in the form for Proposition 47 re-sentencing.  But you should also review the list below to make sure you do not have a disqualifying prior felony which would prevent you from obtaining relief.

But before you fill out the Proposition 47 Petition/Application on your own, you should know that all the public agencies are helping their former clients free of charge. If you were represented by the Public Defender,  Alternative Public Defender, or an attorney who was appointed by the court, you can contact your former attorney’s office and ask them to help you.  Also, many Public Defender Offices, such as San Francisco, are helping all people who are eligible for Proposition  47 in their county, not just former clients.  Therefore, if you think you might need help, contact the Public Defender's Office in the county where your conviction occurred before preparing a  Proposition  47 Petition/Application on your own and ask if you qualify to receive their help.  But, because of a massive case load,  the Los Angeles County Public Defender's Office is only assisting former clients, not everyone.  This might be the exception, not the general rule.

Also, if you want to restore your gun rights, it is highly recommended that you speak to an attorney to determine whether your prior felony is also eligible for a reduction under Penal Code section 17, subdivision (b)(3), because Proposition 47 will not restore your gun rights, but Penal Code section 17 does if there is nothing else on your criminal record that would prevent you from owning a gun. 

You Can Get Help to Fill Out a Prop. 47 Petition in Long Beach  every Wednesday. 

A New Way of Life Reentry Project assists walk-in clients from 10 a.m. to 4 p.m. every Wednesday at 920 Atlantic Ave., Suite 101.  For more information, call (323) 563-3575.

Self-Help 

But if you want to fill out the forms yourself, go to the court website in the county where you were sentenced  and look to see if that court has a pre-formatted form in their form file for criminal law. Most of the larger counties have one.  For example, if your conviction occurred in Los Angeles County, you would go to the Los Angeles County Superior Court website:

        
http://lacourt.org/forms/criminal
        
Look for forms and general information. In Los Angeles, the forms you need are Crim 235
 [Prop. 47 Petition/Application] and Crim 237 [the Proof of Service], which are available here:

http://www.lacourt.org/forms/criminal

If you (or the person you are helping) are in jail or prison, you are seeking a Petition. If you (or the person you are helping) has already completed the jail/prison time of the sentence, you are seeking an Application. It does not matter how old the prior felony case is if it is Proposition 47 eligible. The prior case can be recent or from 80 years ago if the person is still alive to benefit from Proposition 47 relief. 

Fill in the information requested on the Petition/Application, selecting either Petition or Application depending on whether the jail sentence has been served or not.  I suggest that you use blue ink when you fill in the form because when you make copies you will be able to easily see which paper is the original if you write with blue ink.  

In People v. Sherow (2015) 239 Cal.App.4th 875, the Court of Appeal held that the defendant has the burden of proving that he or she is entitled to re-sentencing for a theft crime under Proposition 47; thus, if your criminal record is not clear that the value of the amount taken for a theft crime was under $950, you can and probably should attach a declaration asserting your belief that the fair market value of the item(s) involved are less than $950. But if there is a hearing, you can also make this argument in person at the hearing. 

Make sure an adult over 18, who is not the person seeking re-sentencing  under Proposition 47,  fills out and signs the proof of service, and serves the Petition on the District Attorney's Office either by mail or in person.  Again, have them fill out the proof of service using blue ink so when you make copies you'll be able to recognize the original which needs to be filed with the court.   

Once you fully complete Proposition 47 Application/Petition and your friend fills out the Proof of service, make 2 copies of each form.

The original Prop. 47 Petition/Application form and the original Proof of Service will be filed at the clerk's office in the court where the conviction occurred. 

One of the copies needs to be served on the District Attorney's Office. Staple a completed copy of the proof of service to a copy of the Proposition 47 Application/Petition and your friend can either mail these documents to the District Attorney's office or go to the court with you when you file your Application with the court and serve them in person on the District Attorney's Office since most District Attorney's have an office at the courthouse. Check your local county to make certain this is true where you are. 

The second copy can be used to get a conformed copy of your papers from the courthouse clerk when you file the original Petition/Application and proof of service  at the courthouse. The court stamp on your copy will serve as proof that you filed your petition/application on time. Keep it with your important papers.  Sometimes papers get lost - even at court.  

There is no cost to file the Proposition 47 Petition/Application with the court.

A separate Proposition 47 Petition/Application needs to be filed for each prior felony in which you are seeking a reduction. For example, if you have a prior drug possession charge in Los Angeles County that is eligible for Proposition 47 re-sentencing, as well as a receiving stolen property charge in Riverside County that qualifies for a reduction, a separate Proposition 47 petition/application needs to be filed for each felony case: one would go to the court and District Attorney's office in Los Angeles County and another to the court and District Attorney in Riverside County. Even if you have two separate felonies eligible for a Proposition 47 reduction in the same courtroom in the same courthouse, 2 petitions/applications would be filed.

Many counties have their own forms, so if you have a case in another county, use the form for that county in their case if their form is mandatory.  For example, Riverside, Amador, and a few other courts require that their Prop 47 Petition/Application and the proof of service from their website be used.  Do not use the Los Angeles County form if you have a case in another county where using  its form is mandatory.  Check each court's website carefully in the counties where your prior felony conviction(s) occurred and follow their instructions.  Also, you can look at Nolo Press's website for Prop 47 which shows which counties have a mandatory form.


General information about Proposition 47 is available on the Los Angeles County Superior Court website:

http:// www.lacourt.org/forms/criminal


For additional assistance in filling out the forms on the Court's website, if you are in Los Angeles, you can go to the Los Angeles County Public Law library.  Reference librarians are not able to answer legal questions, but they can direct you to further information to assist you in filling in the Proposition 47 Petition/Application and help your friend or family member fill out the proof of service.

Los Angeles County Law Library - main location
301 West First Street
Los Angeles, CA 90012
(213) 785-2529

http://www.lalawlibrary.org/services



General Hours: M-F 8:30 a.m. to 6 p.m.; Saturday 9 am.- 5 p.m.

Hours for Expungement/Prop 47 Clinic: Second Tuesday of every month,  5:30  p.m. -7:30 p.m. with an appointment. 

Volunteer lawyers with the Legal Aid Foundation Los Angeles are at the downtown law library the second Tuesday of every month helping low-income applicants to fill in their Prop 47 Applications.  This service is free of charge but you must obtain an appointment first.  Contact the law library or call LAFLA at  (323) 801-7989.  

The Los Angeles County Law Library also has branch locations at the Long Beach Courthouse, Torrance Courthouse, Pomona Courthouse, and Norwalk Courthouse but these locations do not share the same hours as the main library. Check the library's website for additional locations.

The main library has computers available for use by the general public. There might be a nominal charge to print information, so take some cash with you to the library if you want to print out the forms there.


You can obtain your criminal background by going to a live scan location if you are in California. Go to http://www.livescan.com  to find locations near you.

If you are out of state and do not remember what is on your criminal record, you can request your criminal record from the California Department of Justice. Go the the California Attorney General's website. https://oag.ca.gov/fingerprints/security.(You can get your record this way if you are in California too, but Live Scan will be faster.)

CAUTION: if you think that you have an outstanding felony warrant from California, it is probably not a good idea to contact this agency as they can seek to extradite you back to California because they are a prosecuting agency of the state.

If you are in California and live near the courthouse where the felony conviction occurred, you can go to the courthouse and ask to look inside your physical  file or if the case is relatively recent, and you have the case number, you can ask a clerk to print out the electronic docket for the case. There is a charge to have a docket sheet printed at the courthouse or to check for information on your file from the Los Angeles Superior Court's website for criminal files. But there is no charge to look inside your own physical file that is stored at the court.

If you have a case eligible for Proposition 47 relief, the Petition/Application needs to be filed within 3 years of November 4, 2014. Don't wait until the last minute to file.

Here is a summary of the steps:

(1)  Obtain your own complete criminal record.

(2)  Review your criminal record and find any former felonies that have been reduced to a misdemeanor by Proposition 47 which includes several drug possession charges and many theft-type crimes when the amount taken was less than $950. (Look at the list below.)  If the court record is not clear that the amount taken was less than $950, you may want to attach your declaration stating your belief that the amount taken was less than $950.

(3)   Look at the list of prior convictions which would prevent you from obtaining relief under Proposition 47 (these are listed below) and if you don't see any of these on your criminal record, fill out a Proposition 47 Petition/Application for each conviction you have that can be reduced.

(4)  For each former felony that can be reduced, prepare a Prop 47 Petition/ Application using blue ink, and check the correct box, either Petition or Application and the correct box is Application if you are now out of jail/prison.  Complete the Prop 47 form, using  the code section for the crime and list the date of conviction.  Use the Prop. 47 Petition/Application  for the court in the county where the conviction occurred if that form is mandatory. If not, use the one for Los Angeles County because LA's form is not under penalty of perjury, so if you make a mistake, it will not result in a perjury charge.

(5)  Have a friend who is at least 18 years old prepare a Proof of Service using blue ink.

(6)  It is highly suggested  that you ask a friend who is a lawyer to review your completed Prop. 47 Petition/Application and the proof of service or  take your papers to a law library and ask a reference librarian to help you make certain you have filled out the papers correctly.  Once you are satisfied that these are correct, make 2 copies of the Prop 47 Petition/Application and the proof of service.

(7)  Staple a copy of a proof of service to a copy of each  Prop. 47 Petition/Application.

(8) Have your friend serve one stapled copy of the Proof of Service and a copy of the Prop 47 Petition/Application on the District Attorney's Office in the county where that conviction occurred either by mail or in person. The proof of service is stapled to the back of the Prop. 47 Petition/Application.

(9)  File the original Prop 47 Petition/Application with the original proof of service stapled to the back of it at the courthouse in the county where the conviction occurred.

(10) While you are filing the original Petition/Application, ask the court clerk to  stamp your second copy with a stamp that shows the date you filed the papers.  Keep this stamped copy safe with your important records.

There is usually not  a court hearing unless the District Attorney contests your Prop. 47 Petition/Application.  If this happens, and if you are eligible, ask the Public Defender for help or consider hiring a lawyer. 

Good luck.


Former felonies eligible for Proposition 47 relief which makes them a misdemeanor include the following:

1. Commercial burglary [Penal Code section 459] is now a misdemeanor called shoplifting under Penal Code section 459.5, if
(a) the value of the property taken or intended to be taken while at that establishment during regular business hours does not exceed $950.

2. Forgery [Penal Code sections 470, 471, 472, 473, 475, 476, 484f, 484i, (subdivision b), is now a misdemeanor under Penal Code section 473 if
(a) the forgery relates to a check, bond, bank bill, note, cashiers check, traveler's check, or money order, where the value does not exceed $950, and
(b) defendant is not also convicted of identity theft under Penal Code section 530.5.

3. Non-sufficient fund checks [Penal Code section 476a, (subdivision (b)], are misdemeanors if
(a) the total amount of all checks, drafts, drawings, or utterings, does not exceed $950 and
(b) if defendant does not have 3 or more convictions under Penal Code sections 470, 475, 476, or similar out-of-state priors.

4. Grand theft [formerly Penal Code sections 484e, 484g, 484h, 487, 487a, 487b, 487d, 487i] is now Penal Code section 490.2 and a misdemeanor if (a) the value of the money, labor, real, or personal property taken does not exceed $950. 


5. Receiving stolen property [Penal Code section 496, subdivision (a)] is now a misdemeanor if (a) the value of the property does not exceed $950.

6. Petty theft with a prior [Penal Code section 666, is now a wobbler [which means it can be charged as either a misdemeanor or a felony] if
(a) defendant is convicted of petty theft and
(b) defendant has a prior with time spent in custody for petty theft [Penal Code section 666], grand theft, auto theft, burglary, car jacking , robbery, or felony receiving stolen property, and
(c) defendant has one of the Proposition 47 disqualifiers as discussed below.

7. Drug possession in violation of Health and Safety Code sections 11350, 11357, subdivision (a), and 11377 are misdemeanors.


Disqualifying Prior Convictions

Prior convictions that will prevent a person from reducing a felony to a misdemeanor under Proposition 47 include:

(a) one or more prior convictions listed under Penal Code section 667, subdivision(e)(2)(C)(iv). These include the following crimes:

(I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code,

(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.

(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.

(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.

(V) Solicitation to commit murder as defined in Section 653f.

(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.

(VII) Possession of a weapon of mass destruction, as defined in
paragraph (1) of subdivision (a) of Section 11418.

(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.

or

(b) an offense requiring registration under Penal Code section 290, subdivision (c). These include the following:

Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c,subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2,

Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.


I hope this information has helped you to fill out a Proposition 47 Petition/Application form. If it has
why not celebrate with a movie?.  Check out the deals available on Amazon below.  DISCLOSURE: If you click on the Amazon icon and buy something today, we will receive a small referral fee that will help us to maintain this site to help others. Thank you. This is not copyrighted. material  Information found here can be shared with everyone.

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.


If there is anything unclear in these instructions, please leave a comment below and let me know.  If this has helped you fill out the form, those comments are welcome, too.   Thank you.

Proposition 47: The List of Former Felonies That Are Now Misdemeanors If You Qualify

California voters passed Proposition 47 on November 4, 2014 and it became effective immediately. Here are the types of cases affected by Proposition 47 if the defendant does not have a disqualifying prior conviction as discussed further below:

1. Commercial burglary [Penal Code section 459] is now a misdemeanor called shoplifting under Penal Code section 459.5, if

(a) the value of the property taken or intended to be taken while at that establishment during regular business hours does not exceed $950.

2. Forgery [Penal Code sections 470, 471, 472, 473, 475, 476, 484f, 484i, (subdivision b), is now a misdemeanor under Penal Code section 473 if

(a) the forgery relates to a check, bond, bank bill, note, cashiers check, traveler's check, or money order, where the value does not exceed $950, and

(b) defendant is not also convicted of identity theft under Penal Code section 530.5.

3. Non-sufficient fund checks [Penal Code section 476a, (subdivision (b)], are misdemeanors if

(a) the total amount of all checks, drafts, drawings, or utterings, does not exceed $950 and

(b) if defendant does not have 3 or more convictions under Penal Code sections 470, 475, 476, or similar out-of-state priors.

4. Grand theft [formerly Penal Code sections 484e, 484g, 484h, 487, 487a, 487b, 487d, 487i] is now Penal Code section 490.2 and a misdemeanor if

(a) the value of the money, labor, real, or personal property taken does not exceed $950.

　

5. Receiving stolen property [Penal Code section 496, subdivision (a)] is now a misdemeanor if

(a) the value of the property does not exceed $950.

6. Petty theft with a prior [Penal Code section 666, is now a wobbler [which means it can be charged as either a misdemeanor or a felony] if

(a) defendant is convicted of petty theft and

(b) defendant has a prior with time spent in custody for petty theft [Penal Code section 666], grand theft, auto theft, burglary, car jacking , robbery, or felony receiving stolen property, and

(c) defendant has one of the Proposition 47 disqualifiers as discussed below.

7. Drug possession in violation of Health and Safety Code sections 11350, 11357, subdivision (a), and 11377 are misdemeanors.

The Disqualifying Prior Convictions which will prevent a defendant from taking advantage of Proposition 47 include:

(a) one or more prior convictions listed under Penal Code section 667, subdivision(e)(2)(C)(iv). These include the following crimes:

(I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code,

(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.

(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.

(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.

(V) Solicitation to commit murder as defined in Section 653f.

(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.

(VII) Possession of a weapon of mass destruction, as defined in

paragraph (1) of subdivision (a) of Section 11418.

(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.

or

(b) an offense requiring registration under Penal Code section 290, subdivision (c). These include the following:

Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c,subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2,

Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.

If you or someone you know has a case pending before the court, or a probation violation for one of the crimes listed above, affected by Proposition 47, you should notify your lawyer immediately.

If you have an old case affected by Proposition 47, you may petition the court to have the old conviction reduced to a misdemeanor if you do so within 3 years of the passage of Proposition 47.

If you have a case in the Los Angeles metro area, and would like me to recommend an experienced criminal defense attorney, or you are criminal defense attorney and would like help preparing a motion, you can contact me at esserlaw@gmail.com
.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.

Penal Code section 17 (b)(3) vs. Proposition 47: Why Section 17 Could Be Better.

If you believe you are eligible to reduce a felony to a misdemeanor under Penal Code Section 17(b), but the crime is now a misdemeanor under Proposition 47, is one better than the other? For many people using Section 17, subdivision (b)(3), will be better because using this method may restore the right to own or possess a firearm.

Section 17 applies when a person was convicted of what is known as a "wobbler," a felony that can also be charged as a misdemeanor.  An individual with this type of conviction is eligible to ask the court to reduce the felony  to a misdemeanor under Penal Code section 17, subdivision (b)(3), when "the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." (Pen. Code, § 17, subd.(b)(3).

Using Section 17, subdivision(b)(3), is often better than resentencing to a misdemeanor under Proposition 47 for many individuals because this reduction restores an individual’s right to possess a firearm (if there is nothing else that would prohibit that person from owning/possessing a firearm). But if an individual is currently under a Family Law civil restraining order, for example, that individual is likely barred from owning/possessing a firearm while the restraining order is in effect. Also, a conviction for other felonies might prevent the person from owning/possessing a firearm.

Whereas, when an individual is resentenced under Proposition 47, that person is resentenced under Penal Code, §1170.18. Penal Code section 1170.18, subdivision (k), states that "[a]ny felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm. . "

But under Proposition 47 relief must be granted unless the defendant poses an "unreasonable risk of danger to public safety." (Section 1170.18, subd. (b).) "Unreasonable risk of danger to public safety" is very narrowly defined as presenting a risk that the defendant will commit one of the "violent" felonies specified in Penal Code section 667, subdivision (e)(2)(C)(iv).

Whereas, the reduction under Penal Code section 17, subdivision (b)(3), is discretionary with the court. Thus, if a person qualifies for the reduction under Section 17, in my opinion, this is better for most individuals. But if the court denies the Section 17 motion, relief under Proposition 47 probably would still be available, if the person qualifies, at least until up to three years after the date Proposition 47 was passed (which was November 3, 2014.) After that, Proposition 47 relief is no longer available for most people.

If your prior felony was one that could have been charged as a misdemeanor, and you believe you qualify for relief under Section 17, subdivision (b)(3), ask your attorney if it would be better for you to use Penal Code 17 instead of Proposition 47 to reduce the felony to a misdemeanor. 

Good luck.  

Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited

If you are a criminal defense lawyer, looking for a contract attorney to prepare a motion under Penal Code section 17, subdivision (b)(3), or you would like me to recommend an experienced criminal defense lawyer in Los Angeles, you can contact me at esserlaw@gmail,.com




copyright © 2015 Christine Esser

This contains an advertisement for legal service. The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.

When a Critical Witness Recants After Trial, a Habeas Petition Can Be Presented in California to Vacate the Conviction

Sometimes witnesses lie at trial and then later want to come clean.  If this happens in your caser, a petition for habeas corpus can be presented to the trial court to ask the court to vacate the conviction.  

Penal Code section 1473, subdivision (a), provides, "Every person unlawfully imprisoned or restrained of his or her liberty, under any pretense, may prosecute a writ of habeas
corpus to inquire into the cause of his or her imprisonment or restraint.

Subdivision (b) provides, "A writ of habeas corpus may be prosecuted for, but not limited to, the following reasons:

(1) False evidence that is substantially material or probative on
the issue of guilt or punishment was introduced against a person at a
hearing or trial relating to his or her incarceration.

(2) False physical evidence, believed by a person to be factual,
probative, or material on the issue of guilt, which was known by the
person at the time of entering a plea of guilty, which was a material
factor directly related to the plea of guilty by the person.

Subdivision (c), provides, "Any allegation that the prosecution knew or should have known of the false nature of the evidence referred to in subdivision (b) is immaterial to the prosecution of a writ of habeas corpus brought pursuant to subdivision (b).
Subdivision, (e) (1), defines "false evidence" to include opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances.


Thus, the first criteria a habeas petitioner must meet is to establish that he or she is in custody or in constructive custody. Actual custody means the petitioner is incarcerated. Constructive custody includes anyone on "on parole, probation, bail, or a sentenced prisoner released on his own recognizance pending hearing on the merits of his petition. The thrust of these cases is that a person is in custody constructively if he may later lose his liberty and be eventually incarcerated." (In re Wessley W. (1981) 125 Cal.App.3d at p. 246. )

Next, you will need the witness’s written declaration admitting the prior statement was false, or if it is an expert witness, that a prior opinion has been undermined by later scientific or technological advances. The falsity must be on a point which is substantially material or probative on the issue of guilt or punishment. A petitioner need only establish by a preponderance of the evidence that the evidence was false or perjured. (See, In re Malone (1996) 12 Cal.4th 935, 962;. In re Sassounian (1995) 9 Cal.4th 535, 546.) Once this is established, a conviction can be vacated by the court.

  If you have a case where you believe false evidence was used to obtain a conviction and that a person will admit the prior testimony was false or the opinion is no longer valid, and the case is in the Los Angeles metro area, you can contact me and I can recommend an experienced criminal defense attorney to present a habeas petition to the trial court. Also, if you are a criminal defense trial lawyer and would like help preparing a habeas petition, you can contact me at esserlaw@gmail.com.


copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.

Robbery under Penal Code section 211 in California

"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211)

Robbery can be of the first or second degree. It is of the first degree when it occurs "of any person who is performing his or her duties as an operator of any bus, taxicab, cable car, streetcar,
trackless trolley, or other vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in the air, and used for the transportation of persons for hire;

also "every robbery of any passenger which is perpetrated on any of these vehicles,"

and "every robbery which is perpetrated in an inhabited dwelling house, "a vessel which is inhabited and designed for habitation, an inhabited floating home, a trailer coach which is inhabited, or the inhabited portion of any other building is robbery of the first degree. (Pen. Code, § 212, subdivision (a).

Additionally, robbery is of the first degree when it occurs while " any person is using an automated teller machine or immediately after the person has used an automated teller machine and is in the vicinity of the automated teller machine." (Pen. Code, § 212, subdivision (b).)

Every other type of robbery is of the second degree. (See, Pen. Code, § 212, subdivision (c).)

7 Elements of Robbery

There are seven elements of robbery: "(1) a taking (2) of personal property (3) in the possession of another (4) from [his] person or immediate presence (5) against [his] will (6) accomplished by means of force or fear (7) with an intent to permanently deprive." (People v. Prieto (1993) 15 Cal.App.4th 210, 213.)

 
Defenses to Robbery

An experienced criminal defense attorney who convinces a jury that any of these seven elements of robbery were not established will achieve a not guilty verdict. Additionally, even if there was a robbery, a criminal defense lawyer might be able to successfully persuade a jury that someone else was the robber, not the person on trial.

Also, sometimes the verdict forms are not clear as to whether the jury is finding a first degree robbery or second degree robbery. The California Supreme court interpreted Penal Code section 1157 in People v. McDonald (1984) 37 Cal.3d 351 (McDonald) and People v. Beamon (1973) 8 Cal.3d 625 (Beamon). "Under the McDonald-Beamon rule, a jury in a criminal case is required to determine the degree of the crime and if it does not, the offense is deemed to be of the lesser degree." (In re Birdwell (1996) 50 Cal.App.4th 926, 928.) "Even if it is obvious that the jury intended to find [the greater degree], the McDonald-Beamon rule focuses solely on the actual verdict and does not take into account any extrinsic evidence or findings." (Id. at p. 930.)

　

Punishment for robbery

First degree robbery is punished depending on the facts of the robbery. When it is proven that the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house, an inhabited vessel, an inhabited floating home, a trailer coach, or the inhabited portion of any other building, by imprisonment in the state prison for 3, 6, or 9 years.

In all other cases where robbery was of the first degree, it is punished by imprisonment in the state prison for 3, 4, or 6 years.

Second degree robbery is punishable by imprisonment in the state prison for 2, 3, or 5 years.

Notwithstanding Penal Code section 664, attempted robbery is punishable by imprisonment in the state prison.


copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.



　

　

Tip on Dealing with Resisting Executive or Police Officer - Penal Code section 69 in California

Sometimes an interaction with a police officer becomes heated and you find yourself or someone you know charged with resisting an executive officer under Penal Code section 69, which can be charged as a felony or  misdemeanor in California.

PC 69

Penal Code section 69 states, in relevant part, " Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty." is guilty of a crime. (Pen. Code, § 69.)

How PC 69 is violated 

Thus, the plain language of Section 69 indicates it may be violated in two separate ways. The first way it can be violated is when a person is accused of "attempts by means of any threat or violence to deter or prevent an executive officer form performing any duty imposed upon such officer by law." The second method it can be violated is by someone "who knowingly resists, by the use of force or violence, such officer in the performance of his duty." (Pen. Code, § 69.)

The Jury Instruction for resisting arrest, CALCRIM No. 2652, indicates the state must prove beyond a reasonable doubt these three elements:

1. The defendant [unlawfully] used force [or violence] to resist an executive officer;

2. When the defendant acted, the officer was performing (his/her) lawful duty;

AND

3. When the defendant acted, (he/she) knew the executive officer was performing (his/her) duty.

Ways to defend against a PC 69 Charge

Thus, to defend against this charge, a defendant or his or her criminal defense attorney must persuade the fact finder, usually a jury, that the state has not proven at least one of the three essential elements listed above. This can be done in a variety of ways.

(1) Lawful self-defense

Perhaps, the person was not resisting the officer, but instead, the person was using force or attempting to use force as an act of self defense. For example, in People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893, the Court of Appeal held that Penal Code section 69 only applies to threats of unlawful violence and not to threats of lawful conduct.

(2)  First-Amendment 

 Verbal disagreement over how an officer is performing job duties, even when delivered in a "belligerent" manner, is protected speech under the First Amendment (See, People v. Quiroga (1993) 16 Cal.App.4th 961, 966. )

(3)  Establish Officer was NOT performing a lawful duty at the time

 Also, if this was an encounter with a police officer, the state must establish that the officer was "performing a lawful duty. " (See, In re Manuel G. (1997) 16 Cal.4th 805, 816; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.)

(4)  Defendant did not know that person was an executive officer 

Also, if the officer was in plain clothes at the time of the encounter, an experienced criminal defense
lawyer might convince a jury that the person accused of resisting arrest was not aware that the person was an executive officer.

If Defendant Is Not a Citizen, Hire an Immigration Attorney 

In Flores-Lopez v. Holder (2012) 685 F.3d 857, the Ninth Circuit held that resisting arrest under Penal Code section 69 is not a categorical crime of violence which would make a person removable for an aggravated felony, specifically a crime of violence for which the term of imprisonment is at least one year. See 8 U.S.C. §§ 1227(a)(2)(A)(iii);1101(a)(43)(F). But the case was remanded to allow the Board of Immigration Appeals (BIA) to determine whether under the modified categorical approach, documents within the record establish whether a petitioner’s plea " ‘necessarily’ rested on the fact identifying the [offense] as generic." Shepard v. United States, 544 U.S. 13, 21 (2005.) Thus, there could be serious Immigration consequences to entering a plea to this charge and an Immigration attorney should be consulted.

Punishment for violating PC 69

In addition to any applicable Immigration consequences, a person who is found guilty of violating Section 69 is subject to "a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment." (See, Pen. Code, § 69) This means that the prosecution has discretion to charge this crime as a felony or a misdemeanor.  If charged as a misdemeanor, the person faces up to a one thousand dollar fine and/or up to one year in county jail.  If charges as a felony, the person can be fined up to ten thousand dollars and/or punished by 16 months, 2 years or 3 years in a county jail.

Because this charge is a wobbler, a crime that can be charged as a felony or misdemeanor, if you are charged with a felony, you or your attorney can submit a motion to the court to ask the court to reduce this charge to a misdemeanor while the charge is pending.

Hire An Experienced Criminal Defense Attorney 

Of course, for all misdemeanors and felonies, we highly recommend that you hire an experienced criminal defense attorney or ask for the assistance of the Public Defender if you cannot afford to hire a lawyer.
　

copyright © 2016 by Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.

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