Tooby's California Post-Conviction Relief for Immigrants

 

If the conviction is set aside, all original charges, including any that were dismissed, are reinstated, and the promises of a limited sentence are set aside.  The client is placed in the same situation occupied right before the plea was entered.  It may be possible for the prosecution to file any additional charges it could have filed at the time the plea was entered.  Since the client is now facing the original charges again, the court can set bail and jail the client until the bail is posted.

 

            It would be possible for the client to be convicted of more charges, or greater charges, than those to which a plea was entered originally, and the client may potentially be sentenced to a greater term of imprisonment.[19]

 

            CAVEAT:  In this age of mandatory sentences, in some cases if the client is convicted after trial of greater offenses or enhancements, the law may require the court to impose greater punishment.[20]

 

Before appealing, it is essential for counsel carefully to consider whether the appeal might result in adverse criminal consequences, such as a longer prison sentence, along with the possibility of improving the immigration situation.  "Once a defendant lays his cause at an appellate doorstep he subjects himself to thorough scrutiny of the proceedings below."[21]  In one case, appellant argued errors in selecting the aggravated term and in computing credits, and the government raised the issue that the conviction was unauthorized, following a guilty plea to a crime that did not exist (conspiracy to commit attempted murder).  The appellate court reversed the conviction, a result that the appellant apparently did not want.

 

            It would be possible for the client to receive a greater sentence if reconvicted.  In general, it is unlikely that a client who has led a law-abiding life since the original offenses were convicted would receive a greater sentence the second time around.  There are situations, however, in which this is possible and may even be likely.

 

· The prosecution is angry that the case was reopened and the judge is sympathetic to the prosecution.

 

· The prosecution is able to force conviction of offenses and enhancements that trigger mandatory sentencing laws, so the judge has no choice but to sentence the client more harshly the second time around.

 

· The prosecution is able to force conviction of more or greater offenses that the court feels require a greater sentence.

 

· The client has reoffended (or is thought to be continuing a life of crime, even if not rearrested), or the client has performed badly on probation or parole, so that the court has a good reason to hand down a stiffer sentence the second time.

 

            California law does require that the client receive full and mandatory credit for time served for every day spent in custody on the original sentence.[22]  California law also has long provided some protection against an accused receiving a greater punishment after exercise of the right of appeal,[23] though this protection appears to be weakening.[24]

 

            Counsel can argue that the client cannot legally receive a greater sentence as a penalty for the exercise of the rights which required that the conviction be vacated, and that the client must be given credit for all time served, and all other punishment previously served, but if the court can point to some changed circumstance since the original sentence that would justify a greater sentence, imposition of a greater sentence may not be legally barred.

 

            Generally, suffering adverse criminal consequences as a result of reopening a case is unlikely and only occurs in five to ten percent of the cases.  The client’s bargaining position has improved greatly because of the additional defense investigation and research that has gone into the case, the expense to the state of a jury trial, and the difficulty for the prosecution to reconstruct an old case.

 

            As a practical matter, because of the law requiring credit for time served, and because the case may be old, if the client has developed a good record in custody and outside since the original conviction, it is often unlikely that the court would resentence the client to a greater punishment after reconviction unless the court were required to do so by mandatory sentencing laws.  Counsel should, however, analyze the specific likelihood carefully in the particular case, and discuss the possibility fully with the client so the client is fully aware of this risk when deciding whether to go forward with an attack on the validity of the conviction.

[19] Alabama v. Smith, 490 U.S. 794, 104 L.Ed.2d 865 (1989) [Pearce presumption of vindictiveness does not apply when greater sentence is imposed after trial than was imposed after prior guilty plea].  If the original sentence was a legally “unauthorized” one (either too great or too small), and the client attacks the conviction, the improper sentence may be set aside at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence.  People v. Serrato (1973) 9 Cal.3d 753, 764; United States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir. 1986).

[20] E.g., Penal Code § 12022.5(c) [use of gun in commission of drug offense requires a consecutive term of three, four or ten years].

[21] People v. Iniguez (2002) 96 Cal.App.4th 75.

[22] Penal Code § 2900.5.

[23] People v. Henderson (1963) 60 Cal.2d 482, 495‑496.

[24] See People v. Thornton (1971) 14 Cal.App.3d 324, 327, following North Carolina v. Pearce, 395 U.S. 711 (1969) [greater punishment permissible after retrial if legitimate reasons are given to justify increased penalty.].