Tooby's California Post-Conviction Relief for Immigrants
§ 3.36 5. The Records Necessary To Establish Error in the Criminal Case Still Exist
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Successful post-conviction work requires documentation of errors in the procedures used to obtain the conviction. Recently, criminal courts are destroying their records after a certain period of time, and criminal lawyers are following suit. It is therefore urgent to begin immediately the process of gathering the records from the criminal court, court reporters, and original defense counsel. Only if these records exist does the client have a reasonable probability of demonstrating the existence of an error so serious as to warrant reopening the conviction.
If insufficient records exist, the prospects of vacating the conviction may be hopeless. In one 1980 case in which the court file had largely been destroyed, it was necessary to reconstruct the court file from records in defense counsel’s file, appellate counsel’s file, the appellate record, and some documents remaining in the original court file, and to file the reconstructed court file along with the motion to vacate the conviction.
There are some issues as to which the prosecution bears the burden of proof.[44] As to these issues, the defense position may be strengthened by the destruction of the criminal records.
[44] E.g., the court must maintain a record that it delivered the advice concerning potential immigration consequences required by Penal Code § 1016.5. If it does not, the law presumes the required warning was not given. Penal Code § 1016.5(b).
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CAL POST CON " EVIDENCE " ADMISSIBILITY " FAXED COURT RECORDS ADMISSIBLE
People v. Skiles, 51 Cal.4th 1178 (Jun. 27, 2011) (a noncertified copy of a writing in the custody of a public entity is not prima facie evidence of the existence and content of the writing, disapproving People v. Atkins, 210 Cal.App.3d 47, 258 Cal.Rptr. 113; but the Secondary Evidence Rule provides for a means of authentication for a faxed copy of a certified copy of an official writing; sufficient evidence supported the finding that a faxed copy of an original copy of an Alabama indictment was authentic).
