Immigration/Criminal: Post Conviction Relief Overview

By otmseo on August 24, 2020

If you have an older conviction out there it’s not the end of the story. Post conviction relief can make a criminal conviction, even a bad conviction, look better.  You have a number of ways to get relief.

Detention vs. Arrest (PC 849.5)

If the cops ‘arrested’ you, but they didn’t file criminal charges; then you can request that the police list your being held as a detention and not an arrest.  Under California Penal Code Section 849.5. You can obtain this relief after the statute of limitations has run. For immigration or employment purposes if you have a detention on your record it looks better than if you have an arrest.

Sealing Arrest Record (PC 851.91)

If the State filed a case against you and it was ultimately dismissed, then you can obtain relief by having the case and police records sealed. Under Penal Code Section 851.91 (“A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed”). This means no one outside law enforcement can access your records. You can also do this if the state never filed a case against you.

Finding of Factual Innocence (PC 851.8)

If your case was ultimately dismissed you can also get a finding of factual innocence. Under Penal Code Section 851.8 (“In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest.”). You have to meet a much higher standard than just having your records sealed. The defendant must prove that no reasonable juror could have felt you were guilty.  You totally have the burden for this kind of relief.  If you are successful, then you can get your record sealed and destroyed. The best possible outcome.

If you have a juvenile case, you can get the record sealed under Welfare and Institutions Code 871. Doing this will result in having all your records sealed.

Changing Plea in Deferred Entry of Judgment Cases (PC 1203.43)

If you have a case where you were given deferred entry of judgment you can have the judgment changed to show that there was no plea of guilty. Usually, in deferred entry of judgment the defendant admits guilt then does some classes or just behaves for a period of time and the case is dismissed. The problem with this is that immigration counts the guilty plea and not the later dismissal. The record still shows a conviction. Under Penal Code Section 1203.43. That means that the court goes back and removes the guilty plea from your records and dismisses the complaint. A much better outcome as far as immigration is concerned.

Withdrawing Plea (PC 1473.7)

In cases where you plead guilty and were not advised by your attorney of the immigration consequences, you can move to withdraw your plea under Penal Code 1473.7. This means you can file a motion to withdraw your plea, then you can either negotiate a better deal with the prosecutor or take your case to trial. You have to prove that it’s more likely than not that you were not advised of the immigration consequences by your lawyer.

Reducing Felonies to Misdemeanors (PC 17b)

If you were convicted of a felony that is a ‘wobbler’, that is it can be charged as a felony or a misdemeanor, then you can have your felony conviction reduced to a misdemeanor. Under Penal Code Section 17(b). This means that when an employer asks, you can say that you were not convicted of a felony.  You always look better with a misdemeanor than a felony. If you reduce the charges it can also can aid you in obtaining a job and restores several rights that you lose as a felon. By reducing your conviction you can restore your right to sit on a jury, right to own a gun etc.

Expungement (PC 1203.4)

If you have any conviction you should get it expunged under Penal Code 1203.4. You have to be off of probation and not have any other cases pending. You will only benefit slightly in the immigration context, but it shows you are putting in an effort to move forward and leave your criminal past behind you. Expungement allows you to answer the question: Have you ever been convicted of a crime with the answer “No.” When it is asked by employers.

This is just a brief overview of the various ways to clean your record. When you are ready to clean up your record, please give me a call at 213-479-5322 to discuss which remedies are available to you.

If you were not advised of the immigration consequences of the plea by your lawyer see my article

If you have a pending criminal case and are concerned about its effect on your immigration status, see my article