Being convicted of murder can cost you a lot, sometimes even your life. In this era of online background checks, a one time mistake can cost you employment opportunities, social standing, income, and much more. However, there is hope for you. Under certain conditions, your murder conviction can now be wiped off your records. If you or your loved one has been convicted of murder, San Diego Criminal Attorney might be the right people to contact. We are conversant with the new changes in the law, and our expert attorneys will evaluate your situation and give you all the help you need. If you are within California, let us help you or your loved one get another chance at freedom.

California Laws on Motions to Vacate a Criminal Judgement

A Motion to Vacate Judgement or commonly known as a Motion to Withdraw a Plea, authorized by Penal Code 1018 PC, gives you a chance to request the court to extract a previous judgment or order which had been put in your records. The court permits you to withdraw your “no contest” or guilty plea and enter a “not guilty” plea.

Provided you show good cause and file a motion to withdraw your plea either before you’re sentenced or within six months of your probation sentence, then the court has to allow you to substitute your guilty plea with a plea of not guilty if you didn’t have a lawyer when you were entering your plea. The court may also allow you to withdraw and replace your plea if it believes that it would be justifiable to do so despite having an attorney at the time of taking the plea.

It might not be possible for you to file a motion to vacate judgment to withdraw your plea if you’ve been incarcerated. Instead, you can file a petition for being imprisoned unlawfully or expungement of your criminal record.

Before petitioning a motion to vacate the judgment, you must show beyond doubt that you have a good cause to file the motion. This can be demonstrated through the following legal grounds:

  • When you were entering into the plea, you didn’t know the consequences of your plea
  • You didn’t have a lawyer to represent you when taking your plea
  • The lawyer who represented you was not competent
  • You were forced to take the plea.

Also, you are allowed by the law to file an appeal for the court to modify your sentence by either shortening it or amending the conditions. The judge can only agree if your sentence was unlawful, a clerical mistake like an incorrect jail term was entered, or a judicial error occurred when the judge made a mistake when evaluating the evidence.

California’s New Legal Meaning of Felony Murder

Under Senate Bill 1437, a person is held liable for committing murder if he/she tries to commit or takes part in a felony and any of the information below is correct:

  1. He or she murdered someone
  2. He or she assisted in the undertaking of murder in the 1st-degree with the aim of killing
  3. He or she was a major participant in the felony and acted with reckless disregard for human life
  4. A police officer was killed while performing his or her job as a result of the defendant’s acts

To convict you of felony murder, you should have committed or tried to commit a certain felony.

Petition to Vacate Murder Conviction - California PC 1170.95

Previously, under PC 189, you could be charged with murder if you took part in an inherently dangerous activity resulting in the death of a person. Whether you actually caused the death doesn’t matter. Under the old laws for felony murder in California, you were found guilty of murder if a victim got killed in the course of a felonious act. Thus, you could be sentenced for murder even if:

  1. You did not intend to kill someone
  2. The killing was by accident
  3. You didn’t know that a murder took place

The only requirements to convict you of felony murder were:

  1. That you perpetrated a felony or that you assisted in the commission of a felony
  2. Someone got killed even if it was an accident

However, this law has now been changed. The Legislature of California passed a bill (Senate Bill 1437), signed by the Governor in October of 2018 which changes some laws for when someone can be convicted of murder. The bill took effect on January 1, 2019. Senate Bill 1437 changes the law by limiting the legal basis for convicting a person of murder. The law provides a way for a person who has been sentenced for murder to petition to have the murder charges vacated. This process is described in PC 1170.95.

The reason behind the passing of this law is to make sure that criminal sentences are dealt with fairly to be equal to the guilt of the person and to help reduce overcrowding in prisons. The legislature realizes that long sentences aren’t equivalent to the culpability of the person who did not actually kill.

If you’re pursuing a petition to resentence or to vacate your murder conviction, you have to fulfill two essential conditions to establish that you are eligible. Your conviction for murder must have been as a result of liability under:

  1. Felony rule on murder, or
  2. Your conviction was based on the doctrine of natural and probable consequences. To be precise, you can’t succeed if you were the actual killer but was an accomplice instead.

Under Natural and Probable Consequences (NPC) theory, a defendant is found to be guilty of felony murder under the following circumstances:

  • If he/she assisted in committing a felony or “target” crime
  • When carrying out the felony, a co-participant committed murder
  • Under all circumstances, the murder was a natural and probable consequence of the felonious act.

A co-participant in crime is someone who abetted and aided another person to commit the alleged crime.

A natural and probable consequence is one which a reasonable person would know that it’s likely to happen if nothing uncommon occurs. Courts will determine that a consequence is natural and probable by looking at the facts surrounding a particular case.

Conditions for Filing Your Petition for Resentencing

A person sentenced for murder under the doctrine of NPC or felony murder can file for a petition to vacate their conviction for murder or for resentencing if the conditions below apply:

  1. The charge sheet allowed the prosecutor to move forward under the doctrine of natural and probable consequences or felony murder
  2. The defendant was sentenced for 1st or 2nd-degree murder after there was a trial or agreed to a plea offer in lieu of a hearing
  3. The defendant can’t be sentenced for 1st or 2nd-degree murder due to the passing of Senate Bill 1437.

The Rules for Appealing a Sentence under Senate Bill 1437

Pursuant with SB 1437, appealing a sentence has two requirements, namely:

  1. A petition
  2. A resentencing hearing

Petition - In accordance with Senate Bill 1437, the person appealing a sentence is referred to as a petitioner. The petitioner must file a petition with:

  • The court which sentenced the petitioner
  • The agency that prosecuted the petitioner
  • The attorney who represented the petitioner

The petition has to include a petitioner’s declaration form that he/she is eligible for a sentence reduction. Eligibility is determined if the petitioner meets all the conditions mentioned above.

Resentencing Hearing - A hearing is held if the petitioner meets eligibility for a sentence reduction. The hearing will dictate whether or not the petitioner’s sentence will be reduced. At this hearing, it’s not the petitioner’s job to ask that his or her sentence reduced. Instead, it is the prosecutor’s job to prove beyond a reasonable doubt that the petitioner’s sentence should not be reduced.

Requirements for the Petition

The petition is served on the prosecuting agency in the county that held the conviction. The officiating judge will assign another judge to rule on the petition if the judge who gave the sentence is not available. The petition must have the following:

  1. The number of the case and the year of conviction,
  2. The defendant’s declaration that he/she is entitled to relief under SB 1437/PC 1170.85,
  3. Whether the petitioner requests the appointment of counsel.

The court may deny the application without prejudice if any information that is required is lacking or if the court can’t ascertain the information. The court will then advise the defendant that it can’t rule on the petition without the missing information. Luckily, if your petition has been denied based on missing information, you are allowed to re-petition after retrieving the missing information.

Ineligibility for Relief Under Senate Bill 1437/Penal Code 1170.95

A defendant does not qualify for relief of their case if the case falls under the following circumstances:

  1. The defendant was the person who actually killed the victim
  2. That the defendant assisted the killing with the purpose to kill
  3. That the defendant acted with reckless disregard for human life when he/she was committing the felony
  4. That the murder victim was a police officer busy performing their duty.

Penalties for Felony Murder Under Senate Bill 1437

Just like non-felony murder, felony murder also leads to a first-degree or second-degree murder charge, depending on:

  • The specific felony involved, and
  • The facts of the case.

Different penalties are imposed for first-degree and second-degree murder.

First-Degree Murder

Penal Code 189 PC of California lists specific felonies in California. Murder is known as first-degree if it occurs during any of the felonies below:

  • Arson
  • Carjacking
  • Rape
  • Burglary
  • Robbery
  • Kidnapping
  • Torture
  • Mayhem
  • Train wrecking
  • Lewd acts with a child
  • Unlawful acts of sodomy
  • Forcible sexual penetration with a foreign object

Also, a person is found guilty of first-degree murder if he or she commits murder by any of the following ways:

  • Using an explosive or destructive weapon
  • Using a weapon of mass destruction
  • By using torture or lying in wait
  • Killing in a deliberate, willful, and premeditated way.

The common legal defenses for murder accusations include:

  • That the defendant didn’t commit any felony
  • That the defendant did not have any intention to kill anyone
  • That the defendant wasn’t a major participant.

SB 1437 states that to convict you of felony murder, you must have:

  • Committed, tried or taken part in a felony,
  • With the motive to kill, aid, or abet in the “commission of murder in the first degree.”

For a first-degree murder you can be convicted of:

  1. 25 years to a life sentence in California state prison
  2. Life imprisonment in California state prison without the possibility of parole
  3. California death penalty.

Second-Degree felony murder doesn’t qualify as first-degree felony murder, and you can face 15 years to life imprisonment in California state prison.

The Hearing Procedure and Formalities for the Petition

Below is the procedure for the petition hearing:

  • The prosecutor has to file and serve a response to the petition of the defendant within sixty days. The defendant has the opportunity to file a reply within thirty days afterward. If either party shows good cause, the judge might give an extension for replies and responses.
  • The judge will issue an order to show cause within sixty days. The court must have a hearing to establish whether it should vacate the conviction or re-sentence the defendant. Still, the defendant and prosecution may consent to waive the hearing and stipulate that the defendant is entitled to a vacation of their conviction. It also applies where the court or the jury found the defendant either wasn’t a major participant of the felony murder or didn’t act with reckless disregard to human life.
  • In case of a hearing, the prosecution has the burden to prove beyond doubt that the defendant doesn’t qualify to be resentenced or for their murder conviction to be vacated. If the prosecution fails to prove those standards, then the court will vacate the defendant’s murder conviction, and the defendant will be resentenced on any remaining counts. Either party can depend on the hearing or trial transcripts, or they may present additional or fresh
  • If the defendant is entitled to relief, but the murder was charged generically, and the target offense wasn’t charged, the defendant’s conviction must be re-designated as the underlying felony or the target offense for re-sentencing.
  • If a defendant is re-sentenced, he/she must be given credit for the time they have served. Afterward, the judge might order parole supervision for the petitioner for up to three years after completing the sentence.

Frequently Asked Questions on Petition to Vacate Murder Conviction

Which cases are affected by Senate Bill 1437?

Senate Bill 1437 is retroactive, which means that it applies to defendants who were accused of felony murder under the old law. This means that if you were convicted under the old law, you might petition to try and get your sentence reduced. However, this law only applies to the defendants who were proven guilty under the theory of natural and probable consequences.

What do I need to file the petition?

Before beginning the process, you need to have some details. If you can’t remember all the details, you should look for The Abstract of Judgement. This is a record that goes from your sentencing court to the California Department of Corrections and Rehabilitation. It contains the following details:

  • Your case number
  • The year of your conviction
  • Your conviction charges
  • Your sentence

This document is kept in your C-File, and your attorney should get a copy for you when you are in custody.

What is the deadline for filing the petition?

There is no deadline for filing the petition. If your case isn’t final in the courts of California, meaning you are appealing your conviction and the time for filing a petition for review from an unfavorable court of appeal decision has not yet passed, or there is a pending petition for review, then you should consult your attorney before filing a petition. Your attorney may take advantage of the provisions of Senate Bill 1437 in your appealing that is still pending, and if you file a petition in the sentencing courts, it may interfere with the efforts.

Who is a Major Participant who acted with Reckless Disregard to human life?

California courts have defined the terms Major Participant and Reckless Disregard for Human Life. At the hearing for resentencing, the prosecution has the burden to prove beyond a reasonable doubt that the defendant was a major participant in the felony and that he/she acted with reckless disregard for human life.

Major Participant

For felony murder liability, the Supreme Court of California has put the following factors into consideration in determining whether a person was a major participant in the felony:

  1. The defendant’s role in the planning of the felony that led to the killing. A major participant doesn’t have to be the ringleader, but a ringleader is a major participant.
  2. The defendant’s role in the use or supply of lethal weapons
  3. The awareness of the defendant on the dangers posed by the nature of the felony, the weapons used or past experience or the conduct of the other participants
  4. The presence of the defendant at the killing scene
  5. The position of the defendant to assist or to prevent the actual murder from taking place
  6. The defendant’s role, actions, or inactions played in the death
  7. What the defendant did after the use of lethal force

According to the Supreme Court of California, no one of these considerations is necessary, nor is any of them necessarily sufficient, meaning that it’s upon the court to weigh.

Reckless Disregard to Human Life

The California Courts of Appeal and the Supreme Court have ruled that the jury or a court must assess a person’s individual responsibility for the loss of life and not just their vicarious responsibility for the underlying crime, to determine whether they acted with reckless disregard for human life.

The Supreme Court of California has put the following factors into consideration in determining whether someone acted in reckless disregard to human life for the purposes of felony murder liability:

  1. The defendant’s knowledge of weapons, the use, and number of weapons
  2. The defendant’s proximity to the felony and opportunity to stop the killing or aid the victim
  3. The duration of the victim’s restraint before the murder
  4. The defendant’s knowledge that another participant was likely to kill
  5. The defendant’s effort to reduce the possibility of violence during the felony

Does Senate Bill 1437 apply to attempted murder convictions?

The Senate Bill petition 1437 is not available to challenge convictions of attempted murder. The law is only applicable within the categories discussed above.

Does the Law apply to people with a special circumstance?

Offenders who receive Life Without the Possibility of Parole or death sentences have a special circumstance finding. However, Senate Bill 1437 doesn’t disqualify them. If there’s an argument that a petitioner couldn’t have been convicted of murder under Senate Bill 1437, people with special circumstances are eligible to file petitions under Senate Bill 1437.

The Difference Between a California Governor’s Pardon and a Petition to Vacate Murder

Apart from petitioning to vacate your murder conviction, you can also apply for a California Governor’s pardon. This is an honor accorded by the Governor of California to people who have undergone rehabilitation of a crime. It relieves the defendant of numerous penalties faced after a conviction. A Governor's pardon will still have your convictions showing on your criminal history, but if you’re granted the petition to vacate murder, the offense will be extracted from your criminal records.

Contact a Criminal Attorney Near Me

Before, it may have seemed hopeless after being convicted of murder; but all hope is not lost after the passing of the new law. You can now petition for a reduction of your sentence or for the charges to be vacated if you are eligible for relief under SB 1437. You need an experienced attorney to assess your case and help you file the petition that might change your life. Contact the San Diego Criminal Attorney at 619-880-5474 to help you file a petition to vacate your murder conviction.