In the State of California, the criminal laws state if you enter a ‘no contest’ or guilty plea, it must be done with the knowledge you’ve entered it knowingly, intelligently, and freely. If after entering this plea, you discover there were consequences as a result of your entering this plea that you were unaware of, or your attorney was incompetent and gave you bad legal advice, or that you were coerced into making the plea, you can file a motion to vacate the judgment.
California provides you the opportunity to file a Motion to Vacate Judgement under Penal Code 1018. If you are successful with this filing, the motion gives you the opportunity to withdraw your plea. You are then able to plead ‘not guilty’ to your charges. From this point, your case is taken back to the beginning.
- Penal Code 1018 (in part)
Penal Code 1018 is a motion to withdraw a plea if you are able to demonstrate ‘good cause’ and you are filing within six months or have not yet be sentenced. You must be provided the opportunity to withdraw your plea and in place enter a plea of not guilty if you had previously pled guilty or ‘no contest.’
- No Contest
The phrase ‘no contest’ means “You do not wish to contest.” This plea is basically the same as a guilty plea in a California criminal conviction. When a defendant enters a ‘no contest’ plea, they are basically admitting guilt and allowing the system to determine their punishment.
Before your plea is accepted, the judge is required to take the plea, make sure you understand that ‘no contest’ is considered in the same manner as a guilty plea, and that you are entering it freely and voluntarily. Your rights are then waived in a written form called the Tahl Waiver.
- Tahl Waiver
A Tahl Waiver is when you waive specific constitutional rights when pleading ‘no contest’ or ‘guilty’ to criminal charges. The Tahl Waiver is used in California for both misdemeanor and felony charges.
It is a waiver you sign stating you knowingly and voluntarily waive your rights and lists the consequences for doing so as:
- Giving up your rights to a jury trial that is guaranteed under the Sixth Amendment.
- Give up the right to confront any witnesses to your charges which are also guaranteed under the Sixth Amendment.
- Give up the right against self-incrimination which is guaranteed under the Fifth Amendment.
California judges may question defendants on this waiver as it often results in an invalid plea bargain. Most judges will require a Tahl Waiver be taken as a written agreement, although there are some who will accept it as an oral plea. Either way, you enter into this agreement, you are waiving your rights.
To be granted the opportunity to file a Motion to Vacate Judgement, it must be proven that had you been provided with all the facts at the time of your plea, you would not have entered one stating you were guilty or entered a ‘no contest’ plea. There are comprehensive and complicated steps to understand if you expect to file a successful Motion to Vacate Judgement.
Motion to Vacate Judgment
With a successful Motion to Vacate Judgement, you are given a chance to request the court to withdraw your previous judgment or order that had been entered. Under Penal Code 1018 this is also known as a Motion to Withdraw a Plea and in part states:
- The defendant, any time before judgment or within six months of being granted probation, can demonstrate good cause, they are allowed to file a Motion to Vacate Judgement. The court will then let you withdraw your plea and replace it with a ‘not guilty plea.’
There is also a process to withdraw your plea once you have been incarcerated, but it would be called a Writ of Habeas Corpus which is a petition arguing that you have been unlawfully imprisoned.
Legal Grounds Required to File a Motion to Vacate Judgment
With a successful Motion to Vacate Judgement, your case is rewound to the beginning, and in order to request this, you must show ‘good cause’ that your original plea was entered as a result of inadvertence, ignorance, incompetence, mistake, or other factors that constitutes overreaching.
When entering a plea of ‘no contest’ or guilty, you must have waived your constitutional rights intelligently, knowingly, and freely, if not, you can request a Motion. There are specific legal grounds you must prove for this to happen.
- Unaware of Consequences
Being unaware of the consequences is perhaps the most common reason for a defendant to file a Motion to Vacate Judgment. When you discover after entering a plea of ‘no contest’ or guilty and later discover there are unexpected penalties, you are allowed to withdraw your plea. You will be asked to prove that you would not have entered your original plea had all the facts been presented to you. Some of the consequences you might not have realized include your sentencing will carry a prison term or mandatory jail sentence. Other effects could be the loss of your professional license, or there could be immigration consequences such as being deported.
Certain criminal offenses are categorized as grounds for inadmissibility, denial of naturalization in the U.S., or deportability. These crimes include crimes designated as ‘aggravated felonies’ such as sexual abuse of a minor, crimes described as ‘moral turpitude’ such as deceit involving theft or fraud, or crimes of violence. When charged with these types of offenses, you must be fully advised of immigration consequences before you enter a plea to the charges.
Your attorney is required to fully explain to you that a conviction of these crimes may result in your exclusion, deportation, or denial of naturalization. The court is also expected to ensure that you understand these consequences. If either the court or your attorney fails to inform you correctly, you are then considered to have not been adequately advised and are therefore entitled to withdraw a plea of ‘guilty’ if this had been your plea.
- No Attorney was Present
Just because you did not have an attorney present at the time you entered a plea, is not by itself grounds for a Motion to Vacate Judgement. You must also show you did not enter the plea intelligently, knowingly, or freely. If for example, you chose to represent yourself, and it was explained to you by the judge, you had the right to an attorney, but clearly decided to continue without one, you would not necessarily be granted a Motion to Vacate. If on the other hand, the judge did not confirm your understanding of your decision, the court would have to allow your motion.
- Incompetent Attorney
If it can be proven your attorney did not provide you with a full understanding of all consequences involved with your plea, did not adequately investigate your case, or encouraged you to take a plea even though it was not in your best interest, you should be granted a Motion to Vacate.
It is not easy to prove your attorney was incompetent as the courts do not typically second-guess attorney’s tactical decisions as it is your decision to make, even when you and your attorney disagree, so if entered willingly, you may not be granted a Motion.
California Felony Murder Law Reform Calls for Petition to Vacate Murder Convictions
There was a black man, Hugh Pettigrew III, who was fatally stabbed when three Fallbrook gang members decided they didn’t want a black man in their territory. In another incident, a security guard killed Marlon Thomas during a shootout that occurred in a robbery gone wrong at a marijuana dispensary, and in another three young people cruising down Balboa Park ended up shooting and killing John Lentz when they drove past him. All three of these incidents have one thing in common- an accomplice to the crime who was not the actual killer received a conviction and was sent to prison for life.
It is because of cases such as these three that California made a radical revision of their felony murder law. As part of a criminal justice reform that the state has been working on for the past twenty years; the three accomplices in these cases may be released from prison. Defense attorneys agree this reform is long overdue and will more fairly fit the punishment to the crime. Prosecutors on the other hand worry criminals will not be held accountable for their actions which resulted in a death.
California’s felony murder law is one of the toughest in the country, and defense attorneys feel this new reform is a significant step towards making sure moral propriety and criminal justice are consistent. Based on crimes, punishment should be compatible with culpability regarding a crime that was actually committed, not of an accident.
In the state of California, a murder that is premeditated and intentional is considered first-degree. A sentence for first-degree murder ranges from twenty-five years to life in prison. The state’s previous version of felony murder sidesteps the question of intent to define other homicides as first-degree murder if they happened while a specific felony crime includes carjacking, robbery, mayhem, burglary, arson, rape, or kidnapping. This rule has been revised during the recent reform.
Under the new law signed by Governor Jerry Brown, (Senate Bill 1437) people who were a significant participant in a murder or those who displayed a reckless disregard for human life will be charged with felony murder. The revision also includes a change to a related doctrine of natural and probable consequences which states that death could reasonably be expected as a likely or natural result during specific types of crimes.
- Senate Bill 1437- Accomplice liability for felony murder (in part)
The existing law describes murder as taking a human being’s life, or fetus, by killing them through malice aforethought.
The bill requires a defendant to have acted with malice aforethought in the crime in order to be convicted of murder, unless the defendant was a participant in the act or attempted an act of a specific felony where the death occurred, but was not the actual killer. Should the defendant not be the actual killer, but had intended to:
- Abet
- Aid
- Solicit
- Assist
- Request
- Kill
- Counsel
- induce
the actual killer during the act of the murder in the first degree, or the said person was a significant participant in the felony and action displayed were reckless and indifferent to human life; they can then be charged with murder.
The new bill gives defendants a way to vacate a conviction or request resentencing when their complaint, information, or indictment was filed against them and allowed the prosecution to go ahead under a theory of first degree murder or murder under probable and natural consequences doctrine, and they were sentenced as a first or second degree murder. This bill applies to those who accepted a plea offer rather than going to trial where the defendant could have been convicted of first or second-degree murder, where now in lieu of the new bill, could not have been charged with murder.
The revisions or new laws are going one step further and allowing retroactive acts for inmates convicted under what is now considered probable or natural consequences or felony murder rule to petition to vacate their murder conviction. For a defendant to benefit from this provision, you would have to file a petition to document your eligibility. If the court can establish a ‘prima facie’ showing you are eligible, the prosecution would then have to show without any reasonable doubt that you are in ineligible to stop your conviction from being vacated.
- Prima Facie
A prima facie refers to a criminal prosecution where the evidence submitted is sufficient to prove a case unless there is reliable evidence to contradict said evidence. A prima facie case is the showing of a legally argued presumption. It is a cause for action or defense to establish a person’s evidence justifies a verdict in their favor, as long as another party does not refute the said evidence.
Vacating a Murder Conviction
There is a difference for those seeking to petition to Vacate a Murder Conviction versus those facing other criminal convictions. Rules for this motion fall under Penal Code 1170.95, and the legislature's intent behind this law was to make sure criminal sentences are addressed fairly and match the accountability of your crime and to help reduce prison overcrowding. The legislature felt that under Penal Code 1170.95 it would reduce inmate numbers to vacate sentences of those inappropriately sentenced in relation to their crime, as long as they were not the actual killer.
If you are looking to Vacate a Murder Conviction, there are two requirements for eligibility. The conviction you face must be the result of liability under:
- Felony Murder Rule
Under California law, the Senate passed Bill 1437 in 2018 and puts in place new laws in California for the crime of felony murder. This rule applies only if the defendant directly killed another during the commission of an attempted felony or felony. The defendant was a significant participant in the killing, or if the victim was a peace officer engaged in the line of duty.
- Probable and Natural Consequences
The Natural and Probable Consequences Doctrine under California law states that an abettor or aider of a target offense can be held responsible for a more severe crime if they are found to be a reasonable person and could have foreseen that a more severe crime was occurring as the result of the target offense.
These requirements specifically outline, you will not succeed with a petition if you were the actual killer, or if you were an accomplice by giving assistance which resulted in the murder.
Who Can File a Petition to Vacate a Murder Conviction
If you have been convicted of murder under the probable and natural consequences or felony murder, it is possible for you to petition the court where you were sentenced, and request your murder conviction be vacated or ask to be resentenced if the following conditions apply:
- If you were convicted of second or first-degree murder after a trial or you accepted a plea bargain instead of having a trial
- Due to SB1437 (Accomplice liability for felony murder), you cannot be convicted of first or second-degree murder
- Your charge sheet allowed the prosecutor to move ahead under the felony murder or probable and natural consequences theory
How to File a Petition to Vacate Murder Conviction
Your petition to vacate a murder conviction is required to be served on the prosecution in the county where your conviction happened. The presiding judge will designate another judge to rule on your petition if the judge who sentenced you is not available. Your petition must include:
- You are required to make a declaration that you are eligible for relief under SB 1437, penal code 1170.85 according to the requirements listed above
- You must list your case number and the year your conviction occurred
- You must state whether or not you would like the appointment of counsel
These three items are required or must be easily attained by the court, and if not, the court can deny your application without prejudice, and you will be informed that the court cannot rule on your petition unless these three pieces of information are provided. You will be allowed to re-file once you’ve gotten all the information gathered.
Who is NOT Allowed to Petition to Vacate a Murder Conviction?
You are not allowed to petition to vacate your murder conviction if you are the actual killer. You also cannot file a petition if you did not kill but did intend to kill the victim and played a part in the actual killing by aiding and abetting the real killer. You also cannot file a petition if you played a significant role in the murder and were found to have behaved with reckless and indifference to human life. The last circumstance that would make you ineligible for filing a petition is if the victim who was killed was a peace officer engaged in the performance of their job.
Procedures and Formalities Involved with Filing a Petition to Vacate Murder Conviction
Within sixty days the prosecutor must file a response to your petition and have it served, and you have the chance to reply to this within thirty days. The court will determine if the cause for the delay on either of these replies is justifiable should one occur on either your behalf or that of the prosecution.
Within sixty days after the judge sends out an order showing cause, the court will have to hold a hearing to decide whether or not to vacate your conviction or resentence you. Both you and the prosecution can agree to waive this hearing and prove that you are eligible to vacate your conviction. This agreement can also occur if a court or jury makes a finding that you either did not behave with indifference to human life or recklessly, or that you were not a significant participant in the murder.
The prosecution holds the burden of proof if the hearing is held, and must prove beyond a reasonable doubt that you are ineligible to petition to vacate your murder conviction and are not eligible for resentencing. If the prosecution cannot provide the proof required, your conviction can then either call for resentencing or be vacated. Both you and the prosecution are allowed to use the transcripts from your trial or produce additional or new evidence during this time.
If you are granted resentencing of your conviction, any time you have served will be credited towards your new sentence. The judge can also order parole supervision for up to three years following the end of your sentence.
Find Legal Help to Vacate a Murder Conviction Near Me
If you feel your murder conviction falls under the new guidelines and you are eligible to file a petition to Vacate Murder Conviction, contact The Los Angles Criminal Defense Attorney. Call our Los Angeles Criminal Lawyer at 310-564-2605 today to discuss your options.
