Case Conclusion Date: 05.28.2009
Practice Area: Appeals
Outcome: Appeal Granted: Matter Reversed & Remanded
Description: My client was convicted of a California criminal-code section based on alleged violent activity in 1995. He had been deported as a result of the conviction. Several years, the client and his family contacted my office to look into finding a way to bring the client back to the United States legally. My office determined that removing the 1995 conviction was required to accomplish such a goal. In 2007, twelve years after the conviction, my office attempted to remove the conviction from the client's criminal record by arguing the offense for which he was convicted was not a criminal offense but instead was simply a penalty provision. A penalty provision under California Law states that a defendant can be given a harsher prison term if the criminal activity was so heinous that it warranted such a harsher penalty. However, for a penalty provision to apply, there must be some actual criminal activity for which the defendant is convicted. My client was not convicted of any such underlying criminal activity. Therefore, we argued that the conviction should not stand because it is only for a penalty provision and not for, and not in combination with a conviction for, any actual criminal activity. The trial-court judge from the California Superior Court did not agree with our arguments and denied the motion because he claimed that it was simply too late to bring such a motion and because he believed the conviction was sound. I explained to the client that because I believed we had sound legal basis for having the motion granted, we should appeal the decision to the California Court of Appeal. The client agreed, and I filed the appeal as well as the opening brief and a reply brief in response to a brief filed by the California Attorney General. I also filed a motion to have the record amended so that it would include necessary documents that I felt the California Court of Appeal should have the opportunity to review prior to making its decision. The California Court of Appeal called for oral argument on the case. On May 28, 2009, in a published decision, the California Court of Appeal granted the appeal and ordered the California Superior Court either to dismiss the case or to amend the original 1995 complaint. The majority opinion filed by Judge Madeleine Flier stated that the California Superior Court did not have jurisdiction to convict my client of simply a penalty provision and that motions to have such convictions removed from a defendant's record can be brought at any time.