The term post-conviction relief refers to legal channels by which defendants convicted of a crime can seek to get their convictions overturned, sentences modified, records expunged or civil rights restored.
There is often a limited timeframe in which to pursue these measures, so defendants are advised to consult with a lawyer right away to go over their best options.
Below our California criminal defense attorneys summarize the 12 primary types of post-conviction relief:
- 1. Motion to withdraw a plea
- 2. Motion for a new trial
- 3. Writ of Habeas Corpus
- 4. Re-sentencing
- 5. Early Termination of Probation
- 6. Commutation
- 7. Exclusion from Megan’s List
- 8. Expungement
- 9. Certificate of Rehabilitation
- 10. Restoration of Gun Rights
- 11. Sealing of Juvenile Records
- 12. Conviction Review
Courts rarely allow defendants to withdraw their pleas unless the defendants can show they did not realize what they were agreeing to. For example, perhaps the defendants’ defense counsel did not explain everything to them (such as adverse immigration consequences such as deportation for noncitizen defendants) – this is called ineffective assistance of counsel.2
If the court grants a motion to withdraw the plea (under Penal Code 1018 pc), the defendant can then go to trial or negotiate for another plea bargain.
If defendants get a criminal conviction at trial, they can file a motion for a new trial under Penal Code 1181 pc.3 Like it sounds, this is asking for the court to grant a do-over. A common ground is that prosecutorial misconduct prejudiced the defendant’s constitutional right to a fair trial and influenced the verdict.
Predictably, most judges are hesitant to admit that trials in their own courtroom were flawed; therefore, judges rarely grant these motions.
Filing a writ of habeas corpus is usually the last resort in criminal justice system cases if the appeals process has failed. The scope of writs is very narrow: Defendants are simply arguing that they are being imprisoned illegally.4
Typical arguments in these writs are that their defense attorney made serious mistakes or that new evidence raises a reasonable doubt about their guilt (such as DNA testing). If the judge grants the writ, the defendant should be released from custody.
Defendants convicted of a crime can file a motion for resentencing with the court requesting that the prison sentence be modified.5 Typically, defendants ask to be released from custody or relieved of probationary conditions.
Note that defendants convicted of a wobbler felony can ask for it to be reduced to a misdemeanor through Proposition 47. Or if they were convicted of felony murder, they may be able to get a reduced sentence through Senate Bill 1437.
Even though being on probation is preferable to being in jail, it can still keep defendants from securing a job or traveling out of state. Therefore, defendants can always request early termination of probation under Penal Code 1203.3 pc.6
In practice, judges prefer defendants complete at least a year to 18 months of probation before granting a request to close the case early. The defendant should also be compliant with all the other terms of probation, such as paying fines and taking classes.
Eligible defendants convicted of a crime may apply to the California governor to get their sentence commuted, which means reduced or lifted altogether. But if the defendant has two or more felony convictions, a majority of California Supreme Court justices would need to consent to the commutation.7
Another term for commutation is “executive clemency.” Applying for commutation is free.
The Megan’s Law website makes public information about registered sex offenders in California. Certain offenders automatically have their information excluded from Megan’s List website. Others can petition to have their information excluded. This includes people convicted of either:
- Penal Code 243.4(a) sexual battery by restraint,
- Penal Code 647.6 Annoying or Molesting a Child, or
- Any offense which did not involve penetration or oral copulation, the victim was not the defendant’s child, stepchild, grandchild, or sibling, and the defendant has finished probation.8
Learn more about achieving exclusion from Megan’s List.
Upon successful completion of probation, eligible defendants can petition for an expungement of the criminal record. If the court grants it, the case will be dismissed with no conviction. And the defendant does not need to tell future employers about the expunged case.9
Note that expungement is not available to people convicted of certain sex crimes involving children or who did time in California State Prison for the offense. Read more about the benefits of expungement.
People convicted of certain crimes and who have lived in California for at least five years may be eligible to get a Certificate of Rehabilitation (COR).10 People with CORs usually have better prospects for jobs and professional licenses. And in certain cases, it relieves the person from having to register as a sex offender. And for California residents, getting a COR is the first step to getting a full Governor’s pardon (discussed below).
California defendants who lost their gun rights may be able to get them back as long as their prior conviction was not for domestic violence or a felony involving a dangerous weapon. One way to pursue restoration of gun rights is for defendants convicted of a felony wobbler crime to ask the court to reduce it to a misdemeanor (unlike felonies, having a misdemeanor conviction generally does not affect gun rights).11
Another way to pursue the restoration of gun rights is to obtain a Governor’s pardon. Note that in-state residents must first petition for a Certificate of Rehabilitation (discussed above) before getting a pardon.
Contrary to popular belief, juvenile records do not automatically seal once the person turns 18 (unless the juvenile had a seal and destroy judicial order under Welfare and Institutions Code 781 WIC).12
Not everyone is eligible for a juvenile record seal. But people who are eligible should pursue it as soon as they can. Juvenile records look bad to potential employers, landlords, and colleges.
Some counties have departments where prosecutors review cases where the defendant may have been wrongfully convicted. In Los Angeles County, defendants can file a claim for review by the Conviction Integrity Unit here.13
1) What is post-conviction relief in California?
Post-conviction relief is an umbrella term for all the legal processes available by which you can either:
- get your criminal conviction vacated or overturned;
- have your sentence reduced, including getting off the public sex offender registry;
- expunge your criminal records (thereby increasing your job and housing prospects); and/or
- restore various rights, such as the right to own a firearm.
In short, a conviction is not the end of your story. You may have various options to lessen or even eliminate all the disabilities associated with your conviction.
Depending on which avenue you pursue, post-conviction relief can take a few weeks to a few years. Some procedures require a post-conviction hearing where you or your attorney presents your case to the judge.
2) Can I get off probation early?
You can always apply for early termination of probation pursuant to PC 1203.3. Though judges are not likely to grant your petition until you have completed at least 12 to 18 months of probation in perfect compliance.
3) Can I get my conviction expunged?
Most cases are expungeable once you complete probation. Plus California is beginning to automatically seal many convictions when a certain number of years elapse.
Also, if your arrest did not result in a conviction, you can petition for a seal pursuant to PC 851.91 (“CARE Act”).
Learn more in the California Courts Self-Help Guide.
4) Can I get my gun rights back?
If you were convicted of a California crime that stripped you of your firearm rights, you can apply for Governor’s pardon and ask that your gun rights be restored.
Though you may have to wait several years before the governor would even consider you fully rehabilitated. Plus there is no guarantee that the governor will grant your request.
- Romero motions (removing prior strikes)
- Reducing felonies to misdemeanor (Penal Code 17b)
- Proposition 64 (expunging of marijuana possession records)
- Restraining orders (protective orders)
- Military diversion
- Bench warrants
- California Penal Code Section 1018 PC.
- Padilla v. Kentucky (2010) 559 US 356.
- PC 1181.
- PC 1473-1508.
- PC 1170. Penal Code 1203.3.
- PC 1203.3.
- California Constitution Article V, Section 8(a); PC 4802.
- PC 290.
- PC 1203.4. (See also Penal Code 1203.43, re. clearing a Record following a drug treatment diversionary program.)
- PC 4852.16.
- See People v. Gilbreth (2007) 156 Cal.App.4th 53
- Welfare and Institutions Code 781 WIC.
- LADA Directive 20-13.