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Petition to Vacate Murder Conviction


A petition to vacate a judgment is a written request filed before the court to dismiss a judgment that the same court entered (A court cannot be petitioned to vacate a judgment entered by a different court). A petition to vacate judgment will provide an opportunity for you to ask the court to reverse the judgment it had previously entered. You can request the court to resentence you or vacate the conviction entirely.

You can file your own petition to vacate murder conviction. However, it is better if a criminal defense attorney drafts the petition and files it on your behalf. At Long Beach Criminal Attorney, we have the necessary experience to draft your petition skillfully and represent you in court vigorously.

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California’s Law on Vacating a Judgment

Penal Code 1018 PC permits you to file a motion to vacate a judgment, also known as a motion to withdraw a plea. This essentially means that you can file a motion to vacate a judgment if you can show good cause but under limited circumstances. You can only file the motion before your sentencing or within six months if you are sentenced to probation. Therefore, you cannot file a motion to vacate a judgment under Penal Code 1018 PC if you are sentenced to serve a prison or jail term.

The court would permit you to withdraw and replace your plea if you did not have an attorney when you first entered a plea. You may also withdraw or substitute your plea if you had an attorney, but the court must be sure that withdrawing your plea is justifiable. If you are incarcerated, you cannot withdraw your plea through a motion to vacate the judgment. Instead, you have to petition the court for unlawful imprisonment or file for expungement.

Before you enter a motion to vacate the judgment, you must demonstrate good cause. You can prove this under any of these legal grounds:

  • You were unaware of all the repercussions of your plea at the time you entered the plea
  • You did not have an attorney at the time you entered the plea
  • Your lawyer was incompetent
  • You entered the plea due to pressure

Also, if you are convicted and sentenced for a crime within California, you are legally allowed to file a petition for the sentence to be modified. In the petition, you can ask the judge to either reduce the length of the sentence or change the conditions of your sentencing.

Often, the judge will modify your sentence if:

  • There was a clerical error, such as entering a wrong jail term
  • The sentence applied was unlawful
  • The court committed a judicial error such as a judge making a mistake while evaluating evidence

Additionally, petitions for resentencing are usually filed when there is a change in the law.

California’s Senate Bill (SB) 1437

California’s legislature passed Senate Bill (SB) 1437, and it became law when it was signed on September 30, 2018. This statute under Penal Code 1170.95 PC became effective on January 1, 2019, and it changed the State's law on felony murder, precisely the basis for conviction. Under this new law, you may have an opportunity to petition for a reduced sentence if you were convicted of murder. Moreover, this law is retroactive, meaning that if you are eligible, you can petition for resentencing or to vacate your conviction entirely even if you are already serving a sentence.

The motive behind this law is to have fair sentences that match the liability of the accused as well as reduce overcrowding in prisons. The legislature found that lengthy sentences are not always proportional to the level of liability of the person who did not commit the murder.

Based on these arguments, how does the new rule differ from the old rule on felony murder?

Criminal liability under the old felony murder law

Under the old California law, you are liable for murder if you:

  • Kill a person, and
  • Do so with malicious aforethought or with the intention to kill.

This law essentially allows you to be charged with felony murder even if you killed without malicious aforethought. Under this law, you can be convicted of felony murder if someone died while you were committing a felony. This applies even if:

  • You did not have the intention to kill anybody
  • You were not aware that a homicide occurred
  • The killing was accidental

For you to be convicted of felony murder, the only conditions necessary were:

  • You either committed or assisted in committing a felony, and
  • Someone was killed, irrespective of whether it was accidental or deliberate

Criminal liability under the new felony murder law

Contrary to the old felony murder law, the new law requires you to have a more significant contribution to the intention to kill. It limits the people who can face prosecution for felony murder to people who plan to kill and those who make the killing. Under Senate Bill 1437, you will be culpable for felony murder when you commit, attempt or take part in perpetrating a felony and any of these happens:

  • You kill a person
  • You aide or abet in committing first-degree murder with an intention to kill
  • You are a significant participant in committing the felony, and you act with reckless indifference to human life
  • Because of your actions, a peace officer is killed in the course of performing his or her duties.

Requirements for Filing Your Petition Under Senate Bill (SB) 1437

This bill is retroactive, meaning that inmates who are currently incarcerated for felony murder are allowed to apply for resentencing. However, not everybody convicted of murder qualifies to petition. If you are seeking to petition the court to vacate your murder conviction or for resentencing, you must meet either of the two conditions that determine eligibility. 

To qualify as a petitioner, your conviction:

  • must have resulted from culpability under the rule of felony murder, or
  • was founded on the theory of natural and probable consequences (NPC theory).

Under the NPC theory, you are liable for felony murder if:

  • You aided in a felony also known as a “target” crime
  • While committing the felony, your co-participant commits murder, and
  • In both scenarios above, murder is a “natural and probable consequence” of your actions.

This means that you can only petition to vacate the judgment if you were a collaborator but not the actual killer. A collaborator, also known as a co-participant is a person who abets or aids someone else in committing a crime. A “natural and probable consequence” is an outcome that any reasonable person knows is likely to occur if nothing unusual happens. The court will examine the facts of your case to establish whether the consequence counts as “natural and probable.”

If you were convicted of murder under the theory of “natural and probable consequence,” you can file a petition for resentencing or to vacate your conviction on three conditions:

  1. Your charge sheet permitted the prosecutor to charge you under the rule of felony murder or the theory of “natural and probable consequence.”
  2. You were convicted of first degree or second-degree murder following a trial, or you accepted a plea bargain in place of a trial.
  3. You cannot be convicted of first degree or second-degree murder after SB 1437 was enacted into law.

What the Petition Must Include

You are required to serve the petition to the prosecuting agency of the county where your conviction occurred. If the sentencing judge is unavailable, the presiding judge has the authority to appoint another judge to decide on your petition.

Before filing your petition, it must include:

  • Your declaration that you meet all the requirements and you are eligible for consideration under Senate Bill 1437
  • Your case number and the year you were convicted
  • Whether you request for counsel to be appointed

If the necessary information is missing or the court cannot verify it, you may be denied the application and be advised that the court cannot rule on your petition without all the necessary information. However, even if your petition is denied due to missing or unverifiable information, you can re-petition once all the information is available or valid.

The Filing Process

Filing a petition to vacate your murder conviction under Senate Bill 1437 involves two main steps: a petition and a hearing for resentencing.

The Petition

To appeal your sentence, you must file a petition with:

  • The court that pronounced your sentence
  • The prosecuting agency in your case
  • The attorney who represented you

The petition must have your declaration that you are eligible for sentencing, and you must meet the minimum eligibility requirements.

Once the prosecutor has received your petition, he or she must file, and serve you with a response within 60 days. You will then have 30 days to reply to the prosecutor’s response. The court may allow an extension on the period of responses and replies if either of the parties can demonstrate good cause.

After the court issues a show cause order, a hearing must be held within 60 days to determine whether to resentence you or to vacate your conviction. However, you may agree with the prosecution to forgo the hearing and specify that you are eligible to vacate the conviction. This eligibility also applies if the court or jury found that you were not a major accomplice or you were not recklessly indifferent with human life.

Hearing for Resentencing

If you do not enter into an agreement with the prosecutor, and you prove that you are eligible for a reduced sentence, a hearing will be held. The hearing is to determine whether or not your sentence should be reduced. During the hearing, it is not your responsibility to prove that your sentence should be shortened. On the contrary, the burden of proof rests entirely on the prosecutor. He or she must prove beyond a reasonable doubt that your prison term should not be vacated or decreased.

If the prosecutor cannot provide the requisite evidence:

  • Any allegations and modifications to your conviction will be annulled, and you will be sentenced on the remaining charges. Either party is allowed to rely on transcripts of the trial or hearings or provide additional or new evidence.
  • The judge hearing your case will make the final judgment on your new sentence. For purposes of resentencing, if you are entitled to a reduced sentence, but you were generically charged for murder without being charged for the target crime, your conviction must be reassigned to the target crime or the associated felony.
  • After you are resentenced, you will receive credit for time served. Additionally, the judge may order you to be under parole supervision for not more than three years after you complete your sentence.

Ineligible Defendants Under SB 1437

You are ineligible to file a petition to vacate your murder conviction if any of these circumstances apply to your case:

  • You were the actual killer of the victim.
  • You did not actually murder the victim, but you showed the intention to kill by assisting or encouraging the actual killer in committing the murder.
  • You were a key contributor in the murder, and you acted with reckless disregard for human life.
  • The murder victim was an officer who died while performing their duties as a police officer.

Contact a Criminal Attorney Near Me

A murder conviction could cost you anything between 15 years to life in prison. The new changes in the law provide an opportunity for inmates to reduce their murder sentence. If you feel that you or your loved one are eligible for resentencing under Senate Bill 1437, you need to contact a seasoned criminal lawyer. We invite you to call the Long Beach Criminal Attorney at 562-308-7807 to help you draft and file your petition. We have the expertise to get your petition to the judge as soon as possible. With so many petitioners and so many cases, we will try to get your case in line as early as we can.