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Does a Writ of Habeas Corpus make sense, in order to change enhancement charge? Is it a possibility for him?

Northridge, CA |

My brother-in-law has been incarcerated since 2000. He accepted the 1st bargain (21yr) given to him for a 2nd strike robbery with a firearm. Unfortunately, he did not know anyone was present in the home. His parents did not know how to handle retaining a qualified attorney and the attorney did not fight the case properly and ordered to give back part of his legal fees. Recently, he was advised that he should file a writ of habeas corpus due to the ruling in the People v. Moody, 117 Cal. Rptr. 2d 527. The plea bargain that he was advised to accept included an enhancement firearm charge of 10 years according to penal code 12022.5. However, as explained in the Moody case, penal code 667.5, which states that the enhancement should have been 1/3, as his 1st strike did not include kidnapping.

I'm sorry, I meant to state Cal. Penal Code Section 1170.1, instead of penal code 667.5. Original Case No. XNEGA039246-01

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Attorney answers 3


Dear ?,

There is a basic rule of law a judge cannot issue an illegal sentence and, in fact, that is one of the reasons for the writ of habeas corpus so, yes, he should bring this error to the attention of the courts with a petition for writ of habeas corpus, assuming this interpretation of the Moody case is correct and will shorten his sentence.

Yours sincerely,
Tim Provis
Cal. Bar No. 104800
Wis. Bar No. 1020123
Member: U.S. Supreme Court Bar


It sounds like your brother-in-law might be able to fight the original sentence, assuming what you are saying is true. You need to sit down with a qualified criminal defense attorney, explain everything in detail, allow the attorney sufficient time to research the issue and then receive a complete and overall analysis of this particular situation. However, from what it sounds like, your brother-in-law just might have something here.
Raviv Netzah
Netzah & Shem-Tov
(818) 995-4200


A writ of habeas corpus petition is appropriate when the appeal remedies have been exhausted. The writ of habeas corpus can be invoked when a person is unlawfully detained. Petitions for writs are sophisticated procedures and you should contact your local attorney for more details.


I am licensed to practice in the state of California. I handle cases from Sacramento to San Diego. I have handled cases in Federal District courts from Alaska and throughout the United States. My comments and opinions are based on California law and are based on the limited information provided in the question. Legal questions are usually fact specific and a few facts can and often does change the opinion I would give. It is better to consult with an attorney in your jurisdiction (your geographic area) and provide specific details regarding your case in private. You would get more specific advice. The contents of the conversations with your attorney are confidential and are protected from being revealed. The statements made in this public forum (AVVO) are not confidential and could be revealed. Therefore, you must be very careful in the details you provide. Do not disclose information that could be a crime or that could be used in order to prove a crime was committed. If you are in California and want to clarify any of my answers, feel free to contact me.