Governor Publicly Announces Commutation of Sentence for Spolin Law Client

Posted on Tuesday, July 14th, 2020 at 11:37 am    

California Governor Gavin Newsom has announced the commutation (reduction) of sentence for a Spolin Law client who was previously serving a life sentence without the possibility of parole. The decision was announced on June 26, 2020. A copy of the commutation, signed by Governor Newsom as well as Secretary of State Alex Padilla, was released to state and national media outlets shortly after the commutation.

James Heard Commutation

The Spolin Law client’s commutation was signed by Governor Gavin Newsom and Secretary of State Alex Padilla

A commutation of sentence is a method that state governors can use to cut short a person’s sentence. It is often used when someone has received an overly harsh sentence or has shown rehabilitation during his or her time in prison. A governor’s commutation is similar to the more well-known governor’s pardon. While a pardon erases a criminal conviction completely, a commutation simply cuts short the person’s sentence. State governors can commute or pardon for state crimes; the President can commute or pardon for federal crimes.

Governor Newsom explained his decision to commute the client’s sentence by describing the client’s excellent behavior, educational program participation, various certificates, and other noteworthy aspects of the client’s life.

In his commutation announcement, Governor Newsom said the following:

In 1998, James Heard, shot his romantic rival, Christopher Chessmar. Mr. Heard then directed his crime partner to shoot Mr. Chessmar. His crime partner complied, killing Mr. Chessmar. On March 20, 2000, the Superior Court of California, County of Los Angeles, sentenced Mr. Heard to life without the possibility of parole for murder.

Mr. Heard was 22 years old at the time of the crime and is now 44. He has been incarcerated for more than 21 years. He has expressed sincere remorse for killing Mr. Chessmar.

While serving a sentence with no hope of release, Mr. Heard devoted himself to self-improvement. Mr. Heard has maintained an exemplary disciplinary record while in prison. He has completed self-help programming and earned an associate degree and art certificates.

Prison staff, including work supervisors and correctional staff, have commended Mr. Heard for his generosity and artistic talents, as well as his interpersonal and leadership skills. Mr. Heard has lived in an honor dorm since 2004. He has donated his artwork to various charitable causes. Mr. Heard has also volunteered his time to crochet hats and scarves for charity.

Mr. Heard committed a serious crime that took the life of Mr. Chessmar. Since then, Mr. Heard has dedicated himself to his rehabilitation and becoming a productive citizen. I have carefully considered and weighed the evidence of his positive conduct in prison, the fact that he was a youthful offender, his long­term confinement, and his good prospects for successful community reentry. I have concluded that Mr. Heard merits the opportunity to make his case to the Board of Parole Hearings so it can determine whether he is suitable for parole.

This act of clemency for Mr. Heard does not minimize or forgive his conduct or the harm it caused. It does recognize the work he has done since to transform himself.

The client’s family was extremely happy to hear this good news.

To learn more about commutations and other types of post-conviction relief, call one of the Spolin Law attorneys at (866) 716-2805.


Supreme Court Sends Death Penalty Case Back for Reconsideration Of Ineffective Assistance of Counsel Claim

Posted on Thursday, July 9th, 2020 at 8:00 am    

–But Skips Its Chance to Modify Prejudice Prong of Strickland

In a 5-3 per curiam decision, the United States Supreme Court stopped short of doing what the habeas corpus petitioner asked it to do: modify or overrule the prejudice prong of Strickland v. Washington (1984), 466 U.S. 668, in the review of a claim of ineffective assistance of trial counsel. However, a majority of the Court in Andrus v. Texas (2020), 590 U.S. ___, found that the Texas Court of Criminal Appeals’ one-sentence dismissal of Andrus’s claim “without elaboration” was insufficient to support a determination that no prejudice occurred. It remanded the case for reconsideration of that issue.

Andrus was convicted of the murders of two people during a bungled carjacking. Trial counsel put on no defense during the guilt phase of the trial, opting instead to focus on the penalty phase. However, trial counsel failed to investigate the existence of mitigating evidence. He failed to present readily available evidence that Andrus’s mother was a drug addict, drug dealer, and prostitute who sold and used drugs around her children. She would disappear for days, sometimes weeks, at a time, on her drug binges. Andrus was often left with the responsibility to raise his siblings. His mother brought home abusive boyfriends who were in and out of Andrus’s life. At age 10 or 11, he was diagnosed with affective psychosis.

At age 16, Andrus confined in a Texas juvenile detention center for serving as lookout while his friends robbed a woman of her purse. He was put on high doses of psychotropic drugs and served long stints of solitary confinement. On multiple occasions, he self-harmed and threatened suicide. He was transferred to an adult facility and released at age 18. Not long after, he committed the murders of which he was convicted. In prison, Andrus attempted suicide.

None of the foregoing evidence was presented during the penalty phase of Andrus’s trial. In fact, trial counsel was unaware of the evidence because he did not investigate Andrus’s past and failed to interview witnesses who could have testified to those facts. The only witnesses that trial counsel did present actually bolstered the prosecution’s case that Andrus had a propensity for violence and was a threat to those around him. Andrus was sentenced to death.

After an unsuccessful direct appeal, Andrus filed a petition for habeas corpus in the trial court, claiming ineffective assistance of trial counsel in violation of his Sixth Amendment right. After an eight-day hearing, at which the above evidence of Andrus’s past was introduced, the trial court concluded that trial counsel had been ineffective and that such ineffective representation prejudiced Andrus.

The Texas Court of Criminal Appeals reversed. The court concluded that Andrus had failed to show, as he was required to do under Strickland, that counsel’s representation “fell below an objective standard of reasonableness” or that there was a “reasonable probability that the result [of the penalty phase of the trial] would have been different” had counsel’s performance not been deficient. Andrus petitioned the Supreme Court for a writ of certiorari.

In the Supreme Court, Andrus argued that the abbreviated analysis of Strickland by Texas courts in general and by the court in his case in particular resulted in the pro forma rejection of meritorious ineffective-assistance-of-counsel cases. He claimed that in cases such as his, where counsel’s trial performance was patently deficient, the “truncated, analytically unsound” application of the second prong of Strickland produces unjust results. The prejudice prong is so onerous, he claimed, that few courts find it satisfied, and he questioned how a criminal defendant could fail to obtain habeas relief when the adversarial system had so utterly failed.

Claiming that an abbreviated Strickland analysis that looks only at the evidence adduced at trial to determine prejudice is unjust and unconstitutional, Andrus argued that a court must compare the evidence from the trial with the evidence from the habeas corpus hearing to determine whether the defendant was prejudiced. The question is whether the new evidence adduced at the habeas corpus hearing would have affected the outcome of the trial, not whether the evidence at trial was sufficient to support the penalty imposed. Further, Andrus claimed that a reviewing court in a habeas corpus ineffective-assistance claim must assess how the deficit performance affected the fundamental fairness of the proceeding.

The Supreme Court did not bite on the opportunity to modify or overrule Strickland. Without addressing Andrus’s arguments on that score, the Court applied the Strickland test to his claim. It did, however, reject the Texas Court of Criminal Appeals’ decision dismissing the habeas corpus petition. Disagreeing with the Texas court, the Supreme Court held that the record clearly showed that counsel’s conduct fell below reasonably objective standards for representation.

Next, the Court stated that the Texas court “may have failed properly to engage with” the question of prejudice from that ineffective representation. The lower court “concluded without elaboration” that Andrus failed to meet the Strickland standard, but it should have considered “the totality of the mitigation evidence”—both that adduced at trial and that presented in the habeas hearing in the trial court. That evidence, the Supreme Court held, must be reweighed against the evidence in aggravation to determine whether a reasonable probability exists that Andrus would have received a different sentence. The Texas Court of Criminal Appeals’ opinion was “unclear” as to whether it engaged in this analysis, and the Supreme Court remanded the case for further consideration of the prejudice issue.

While the Supreme Court did not modify or overrule the prejudice prong of Strickland, it did provide guidance on the evidence that must be considered in determining whether prejudice exists. Its rejection of the Texas court’s one-sentence dismissal of Andrus’s claim may signal that more is required of a court reviewing an ineffective-assistance-of-counsel claim. The decision must show that the court “reweighed” all of the newly provided mitigating evidence against the aggravating evidence in determining prejudice. In addition to breathing life back into Andrus’s habeas corpus claim, the Supreme Court’s holding may shift the prejudice analysis away from a curt dismissal and toward a meaningful weighing of the evidence.


CA Senate Bill 1437: You May Qualify for Resentencing?

Posted on Wednesday, June 24th, 2020 at 8:55 am    

In September 2018, the Governor of California signed legislation that reformed the state’s approach to accomplice liability in felony murder cases. Significantly, CA Senate Bill (SB) 1437 will have a retroactive effect.

Under SB 1437, people convicted under the old felony murder law can apply to have their sentences reduced. If you or a loved one has been convicted of murder for their role in a felony that resulted in someone’s death, it is likely that these reforms apply to you.

If you have questions about how CA SB 1437 might apply to your or a loved one’s case, call Spolin Law P.C. right away. To schedule a free consultation, contact us today at (310) 424-5816.

California Changed the Old Felony Murder Law

Before CA SB 1437 went into effect, you could be convicted of felony murder if you committed, aided, or abetted to commit a felony, and any person died as a result. It would not matter if you did not actually kill the victim, or even if the death was accidental.

According to the new law, to convict you of felony murder, a prosecutor must demonstrate that you committed a felony, or aided or abetted a felony. Additionally, they will need to prove one of the following:

  • You killed a person
  • You aided or abetted the killing, which means proving your intent to kill
  • You were a major participant in the felony, and you acted with reckless indifference
  • Your actions caused the death of a peace officer who was exercising their duties

What’s Different Under the New Felony Murder Law?

The essential difference between the old law and the new law is that now, prosecutors have to prove your intent or state of mind – unless you actually killed someone, or the person who died was a peace officer. Previously, you could get convicted of felony murder as long as someone got killed in a felony that you were involved in. It didn’t matter what your state of mind was. Now, prosecutors may have to prove one of two kinds of state of mind:

Intent

The prosecutor may show that you intended for the victim to die in various ways. For example, a witness could testify that you told an accomplice “to get rid of him.” There may also be evidence that you provided the murder weapon to the killer shortly before the act.

Reckless Indifference

When proving recklessness, the prosecutor doesn’t need to show that you intended to kill. Instead, they need to show that you did not care if a death occurred. In this case, evidence that you were present and did nothing to stop a killing despite having some power to intervene may be enough to show reckless indifference.

Proving your “state of mind” adds an extra level of protection, which conforms to the general rule that someone can only get convicted for crimes that they intended to commit. The only time state of mind doesn’t matter is when an officer is killed, or you actually kill the victim. These aggravating circumstances make is so your state of mind doesn’t matter.

Convicted Under the Old Law? You May Qualify for Resentencing

CA SB 1437 makes you eligible for resentencing if all of the following applies:

  • You were prosecuted under the natural probable consequences theory. This means that you were charged with felony murder and did not directly kill the victim. Rather, the prosecutor argued that the victim’s death was the natural and probable result of the felony you committed.
  • You were convicted of first or second-degree murder. The conviction could have been entered after a guilty verdict from a jury, or a plea deal. In other words, it doesn’t matter if you were convicted after a trial or not.

Have Questions About CA SB 1437? Contact a Los Angeles Appeals Lawyer Now

If you think there is any chance that the above factors apply to your case or that of a loved one, you should speak to an experienced Southern California criminal appeals lawyer as soon as possible. You may be in a position to petition the court for a resentencing hearing.

This could result in receiving a lighter sentence or even your freedom. To find out more about sentencing options for felony murder, call Spolin Law P.C. today at (310) 424-5816, or reach out online to schedule a free case evaluation.


What Is a Petition for Rehearing?

Posted on Wednesday, April 29th, 2020 at 2:12 pm    

After a case is appealed and the decision does not go in your favor, you may feel like you are out of options. However, there is a possible route that your attorney may explore: a petition for rehearing. This petition has strict time limits and requirements, so it is important to discuss it with your attorney as soon as your appeal decision comes through.

To learn more about all your criminal appeals options, contact Spolin Law at (310) 424-5816 now for a free consultation.

Understanding a Petition for Rehearing

After you file an appeal and your case goes to the appellate court, they pass down their decision. The petition for rehearing is a way to contest the appellate court’s decision.

This isn’t the time to try out a new defense angle or fight to have evidence analyzed in a different way. It is primarily used to resolve errors made by the appellate court during the appeal trial. It takes a careful and exhaustive legal review of the court’s decision to find useful flaws.

When is a Petition for Rehearing Appropriate?

When you discuss the outcome of your appeal with your appeals attorney, they will help you understand your options. If they recommend a petition for rehearing, it means that your case falls into one of a few categories.

Situations in which a petition for rehearing may be appropriate include:

  • If the court’s decision focused on an issue that was not included in your attorney’s briefs
  • If the court’s opinion ignores or omits an important fact or issue raised during the case
  • When a fact is misstated or misrepresented and influences the appellate court’s decision
  • A legal error is made
  • If there are concerns over due process

The Deadline for a Petition for Rehearing

A petition for rehearing in California must be filed within 15 days of the appellate court’s decision. This is a very tight deadline, which is why your attorney will explore and explain your options as soon as the original decision is handed down.

What Happens Next

Several things could happen after your attorney files a petition for rehearing. The court might deny the petition immediately with a written order. This is fairly common, as it is relatively uncommon for the court to realize they’ve made a mistake and reverse it.

If they deny your petition, they may still modify the original opinion to reflect the information presented.

The court may also agree that an error was made in their decision. They may issue a new decision reflecting the new information. They may also request additional briefs or oral arguments from your attorney for additional clarification. After receiving this information, they will pass down their new decision.

If the court does not respond to the petition before the original decision becomes final, the petition is considered to have been automatically denied.

Other Options After an Appeal

Your attorney may also recommend filing a review. This strategy is often used if your case poses a new legal question or issue. It is also helpful if there are constitutional violations in the original decision or handling of the case.

Once your options have been exhausted in the appellate process, you may be able to pursue a Supreme Court review.

Find Out How We Can Help With Your Appeal

Appealing a court decision can be complicated and time-consuming, which is why it is crucial to work with an attorney who focuses on criminal appeals in their practice.

At Spolin Law P.C., we fight appeals in state and federal courts. Get started now by calling us at (310) 424-5816 or reach out online. We will schedule a free consultation and explore your legal options.


Malcolm Alexander: Wrongful Conviction Vacated After 38 Years

Posted on Monday, April 13th, 2020 at 8:28 am    

Unfortunately, wrongful convictions occur in the United States quite often, and the process of vacating these false convictions can take many years. This was the case for Malcolm Alexander, who fell victim to an incorrect eyewitness identification, an incompetent defense attorney, and lost evidence.

In 1980 Malcolm Alexander was arrested and convicted for a rape he did not commit. The rape, which took place in 1979, was linked to Malcolm Alexander solely by eyewitness identification. The victim initially described the attacker as a 6ft tall male, but eventually, though somewhat uncertain, identified Alexander. The victim was attacked from behind and did not identify Malcolm Alexander until four months after the rape had occurred. Even then, the police incorrectly conducted the perpetrator line-ups and only regarded her identification as “tentative.”

This incorrect eyewitness fits a pattern in wrongful conviction cases. Eyewitness identification is the number one reason for wrongful convictions. Specifically, 71% of wrongful conviction cases are due to an incorrect eyewitness identification. In fact, in the legal profession, there is growing evidence against the accuracy of eyewitness identification; one in four is incorrect. (See criminal appeals attorney Aaron Spolin’s book, Witness Misidentification in Criminal Trials, to read about this topic in greater depth).

While most humans believe they can recognize those that have caused them or others harm, the misidentification stems from a variety of factors. Some of the most crucial factors are: witnesses being under high levels of stress, witnesses tending to concentrate more on weapons than the identity of the perpetrator, police or prosecutors using suggestive tactics to sway witnesses while they are in the identification process, and more.

In the case of Malcolm Alexander, the witness was both in an extremely high stress situation as she underwent a rape, and did not have a good line of sight to the attacker — both of which could have led to the misidentification. In spite of the victims uncertain identification, the trial for Malcolm Alexander was quick. The lawyer defending Mr. Alexander did not point out any of the inconsistencies with the witness identification, nor promote another narrative of his innocence. In fact, the lawyer defending Malcolm Alexander did not present neither opening nor closing arguments on behalf of his client, nor did he call any witnesses to defend Mr. Alexander. The entire trial of Mr. Alexander lasted one day. In spite of the existence of DNA evidence, including pubic hairs and semen, neither attorney requested that DNA testing be completed. Malcolm Alexander was 21 years old, and the father of a two year old, who was then given life without parole.

Malcolm Alexander advocated for his innocence while he was in prison, and eventually, the Innocence Project picked up the case. Unfortunately, the innocence project faced many challenges. Most notably, the evidence from the case had been destroyed by the New Orleans Police Department. However, after a continuous push from the Innocence Project, the pubic hairs from the scene were recovered.

After 38 years in prison in Louisiana, Malcolm Alexander was exonerated, thanks to the evidence found by the attorneys working on his case. A sample of his pubic hair did not match the pubic hair left by the perpetrator at the crime scene. Malcolm Alexander was released from prison on January 30th, 2018.

Works Cited:

“ MALCOLM ALEXANDER.” Malcolm Alexander – National Registry of Exonerations, University of Michigan Law, 6 Feb. 2018, www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5274.
“Eyewitness Identification Reform.” Innocence Project, www.innocenceproject.org/eyewitness-identification-reform/.
“Malcolm Alexander.” Innocence Project New Orleans (IPNO), 30 Jan. 2018, ip-no.org/what-we-do/free-innocent-prisoners/client-profiles/malcolm-alexander/.


California Criminal Appeals: Terms & Definitions

Posted on Sunday, March 29th, 2020 at 1:53 pm    

A guilty verdict is not always the end of the road. You still have options even after a conviction in California. The criminal appeals process offers you the chance to appeal an unfair judgment and have your conviction reviewed.

However, appealing a case is complex and requires careful attention to deadlines, filing requirements, and other details that can impact the outcome of your case. As the premier California appeals attorneys, Spolin Law, P.C. has provided some of the key terms used in the California criminal appeals process. These may help you understand what to expect.

To schedule a free consultation with Spolin Law, contact us today at (310) 424-5816.

Criminal Appeals: Key Terms

  • Brief – A brief is a written statement that details one side’s arguments. In an appeal, a brief usually outlines why the court made a mistake or supports the prior ruling.
  • Case Law – To understand how the law applies to your case, you have to look at how the law was interpreted in previous court decisions. Case law is another name for legal precedent.
  • Court of Appeals – The court that reviews decisions made by lower courts; Also known as a state appellate court.
  • Decree – A formal order that is legally enforceable.
  • Finding – A decision made by the court or jury after an examination or investigation. The judge announces their finding after deliberation.
  • Lower Court – When a decision is reviewed during an appeal, the lower court’s decision is the one being reviewed. Typically in reference to district courts, lower court decisions are reviewed by a superior court.
  • Motion Practice – A party uses a motion practice to ask for relief from the court. A motion is how an issue is brought to the court for a decision. Common examples include motions to dismiss charges, compel action, or exclude certain evidence.
  • Notice of Appeal – When you decide to appeal a lower court’s decision, you file a notice of appeal with the superior court. This starts the official appeals process.
  • Opinion – When your case goes to the court of appeals, three or more judges hear your case. After they make a decision, they provide an explanation of their decision and the influencing factors.
  • Oral Arguments – During oral arguments, lawyers from both sides summarize their points and take questions from the judge.
  • Relief – Post-conviction relief gives the defendant the opportunity to provide more evidence or bring up additional issues after a decision has been reached. If evidence supports it, your relief can include a fair resolution.
  • Petitioner – The party who requests an appeal and submits a notice of appeal to the court is the petitioner.
  • Precedent – This is similar to “case law.” It refers to previous court decisions in similar cases to the one being heard. Judges may look at the precedent set by previous cases when trying a new case.
  • Pro Se – Pro se representation is when an individual does not have an attorney and chooses to represent themselves in court.
  • Respondent – The party that did not request the appeal is the respondent.
  • Stay Pending Appeal – A stay pending appeal offers temporary relief from the judgment of the court until the court can rule on the appeal.
  • Superior Court – During the appeal process, the superior court is the one that reviews the decision made by the lower court.
  • Trial Court – The trial court is the court with original jurisdiction over a criminal case.
  • Writ – This is a written court order that tells a party to act or abstain from acting in a specific way. For example, a Writ of Habeas Corpus asks the court to review the terms of imprisonment.

Why You Need an Appeals Attorney

If you want to appeal a court decision made against you, you need the assistance of an experienced appeals attorney. Your lawyer can review your official case file to look for mistakes that may strengthen your argument. An appeals attorney will help you navigate this process, avoid roadblocks, and meet strict deadlines.

Contact Spolin Law Today

Attorney Aaron Spolin of Spolin Law, P.C. was previously a prosecutor and now an award-winning criminal defense and appeals attorney. With extensive appeals experience and a record of overturning unjust convictions, when the system has wronged you and you need to appeal, turn to Spolin Law.

Schedule your consultation now by contacting us online or call (310) 424-5816.


Spolin Law Overturns Second Defective Murder Conviction Within Six-Month Span

Posted on Thursday, March 19th, 2020 at 6:36 am    

Spolin Law attorneys Matthew Barhoma, Caitlin Dukes, and Aaron Spolin celebrate with client R.H. and case manager Hemi Tann

Some of the Spolin Law attorneys celebrate with the client days after he is released from prison. Pictured (left to right): Matthew Barhoma (Of Counsel attorney), Caitlin Dukes (attorney), Aaron Spolin (attorney), R.H. (client), Hemi Tann (Case Manager)

Spolin Law achieved justice on another case a few weeks ago when the firm’s attorneys successfully overturned a murder conviction for an innocent client who had been convicted of murder. This was the second overturned murder conviction the firm has achieved within the past six months for different clients. (To see info about previous successful cases, visit the Awards & Media section of the Spolin Law website).

The client had been convicted of first-degree murder (Penal Code 187), attempted murder (Penal Code 664/187) and robbery with a gun enhancement (Penal Code 211) in 2004 and had been in state custody since his arrest in 2002. Since that time, he has attempted to appeal his conviction multiple times and with different attorneys. He hired Spolin Law to handle the most recent (and successful) petition several months ago. The firm’s appeals attorneys who handled his case included former prosecutor Aaron Spolin, Of Counsel attorney Matthew Barhoma, and former prosecutor Caitlin Dukes. Ms. Dukes conducted the oral argument for Spolin Law based on the firm’s written submission. Attorney Winston McKesson, the client’s long-time personal lawyer, was also present and provided valuable assistance that aided the firm’s written submission and oral argument on the matter.

The client’s murder conviction was defective for a number of reasons. First, the client—who was 15 years old at the time—was not actually present at the scene of the crime. He was convicted due to his partial fingerprint being on the car at the scene of the crime and an eyewitness describing one of the teenage robbers having “an afro.” After the conviction occurred, the eyewitness clarified that she had not actually seen the client at the crime scene. The second fault in the murder conviction resulted from the fact that the client was convicted under the “felony murder” theory that has since been removed from the law books. Specifically, the client was convicted of “murder” because the old law stated that a person could be convicted of murder even if they participated in a felony and during the course of this felony a person unintentionally died. Under the old law, a person could have been guilty of murder even if they did not want to physically harm anyone and had no idea that a death would occur. The court relied on this second line of argument to strike the murder conviction.

Superior Court Judge James Otto, in overturning the murder conviction, determined that the client was not a “major participant who acted with reckless indifference to human life.” This determination was the primary point of argument for the lawyers on the case. (Please note that prior successful outcomes do not guarantee a similar result on a future case).

The above photo was taken at the Spolin Law office where some of the team members celebrated the client’s release and gave him a $300 Men’s Warehouse gift certificate (a firm tradition) to help his professional advancement. The client was present with his wife, who had never lost faith in him throughout the seventeen years, five months, and two days of his jail and prison time. She—and the client—had lost multiple other appeals, but they never gave up. In the end, the client won his freedom and can now start his life anew. He already has a job giving lectures and presentations about wrongful convictions and how to live a crime-free life.

To speak with one of the attorneys at Spolin Law about this case or any other criminal law matter, please call us at (866) 716-2805. The firm handles state and federal post-conviction matters.


California Appeals: How Long Does an Appeal Take?

Posted on Wednesday, February 19th, 2020 at 5:52 am    

If you are interested in appealing your criminal conviction, it is important to understand the timeline of the process. An appeal can take anywhere from a few months to years depending on the unique factors involved. But, in every case and appeal needs to be filed quickly. However, the decision will not be immediate.

You should talk with a Los Angeles appeals lawyer at Spolin Law P.C. regarding the California appeals timeline. This can give you realistic expectations of what to expect.

To schedule a free consultation, contact us today at (310) 424-5816.

Appeal Filing Deadline

The first step in a criminal appeal is determining if you are eligible. Immediately after a conviction sentencing, you should speak to an attorney about an appeal.

Your lawyer will carefully review your case for legal errors. If there is evidence that a mistake of law was made during your trial or sentencing, then you have a valid reason to file an appeal.

Next, you must determine if you want to appeal.

If so, you need to file a Notice to Appeal in the superior court. For felonies, you have 60 days to file a notice of appeal in a criminal case from the date the judgment was entered. For misdemeanors, this deadline is only 30 days.

There are other types of post-conviction relief that can be filed after the 60-day or 30-day window, including a California Writ of Habeas Corpus and an Application for Commutation of Sentence. However, traditional or “direct appeals” must be filed within this deadline.

Can You File an Appeal Late?

There are very few reasons why a California court will give you more time to file an appeal. There are possible extensions under the 2018 California Rules of Court, which allows for more time following public emergencies.

You might have grounds for an extension if your trial attorney failed to perform a duty related to a possible appeal. A common example is if your attorney neglected to inform you of your right to appeal. Basically, if you were not informed of your right to appeal, and did not learn of the right until after the filing deadline, call a Los Angeles appeals lawyer right away.

Another possible failure is not filing a timely notice of appeal after you asked your attorney to do so. In this situation, contact Spolin Law P.C. right away to get new representation.

You may also consider an extension for constructive filing. This occurs when you make a good faith attempt to file your notice of appeal, but it is not received in time. For instance, you may represent yourself initially and file in the wrong court. Or, you may ask your jail or prison officials to mail your notice of appeal, and it was mailed or arrived late.

You May Need a Certificate of Probable Cause

If you entered a guilty or nolo contendere plea, admitted to a probation violation, or convicted after an unlawful search and seizure, then you must also file a certificate of probable cause. This states that the trial was unlawful in some way. This is a written statement that you or your attorney provide under oath.

You must deliver the statement to the trial court, which issues the certificate. The trial court has 20 days to deny or approve your request for a certificate of probable cause.

What Happens After Filing a Notice to Appeal

Once you file the Notice to Appeal, the other parties must be notified. The superior court clerk will send a notification of the filing to each parties’ attorney, any unrepresented defendant, the reviewing court clerk, and to each court reporter.

Within 10 days of filing the Notice of Appeal, you must file a Notice of Designating Record on Appeal.

The court reporter is notified because they must prepare the transcript. If there was not a court reporter, the court creates a transcript from the electronic records of the proceedings. Additionally, you may obtain a clerk’s transcript. This encompasses all of the materials collected and placed in the case file during the proceeding.

Filing Your Opening Brief

After the initial appeal paperwork is filed and the trial court record is compiled, you must submit an opening brief. This brief is prepared by your appeals lawyer and can be lengthy.

The brief provides a summary of the trial, asks for a certain outcome, and provides a supporting argument.

For cases in the Court of Appeal, your opening brief must be filed within 40 days after the record is filed. The respondent’s brief must be filed within 30 days of your opening brief. Then, you have 20 days to file a reply brief to the respondent’s brief.

Oral Arguments for the Appeal

After the briefs are filed, the next step is oral arguments. The court will notify you of the hearing date. This may be weeks after the briefs are filed. It depends on the court’s schedule.

Oral arguments allow your lawyer to argue your grounds for an appeal to the judge in person. Depending on the court in which your appeal takes place, your attorney may have up to 30 minutes to make your case. During this time, your attorney may also answer questions from the appellate court judge.

Have Questions About an Appeal in CA? Contact Spolin Law P.C.

Interested in appealing your criminal case? Contact Spolin Law P.C. right away. Aaron Spolin was previously a prosecutor and an award-winning criminal defense and appeals attorney.

Contact us online or call (310) 424-5816 to schedule a free, initial consultation.


Criminal Appeals: Can I Appeal a Juvenile Verdict?

Posted on Thursday, February 6th, 2020 at 8:36 am    

California has an alternative criminal justice system for minors. While the proceedings still take place in court, they are not the same as in a criminal trial.

Juveniles charged with crimes must go through several hearings. The last of these hearings is called a disposition hearing. That is when the judge makes the final decision about a juvenile’s fate. It’s a lot like the sentencing phase of a criminal trial.

Similar adults, a juvenile can appeal this final decision.

For more information about appealing a juvenile verdict, call Spolin Law P.C. today at (310) 424-5816 for a free consultation. You can also reach out online.

When Should Juveniles Appeal?

Since the juvenile justice system’s goal is rehabilitation rather than punishment, juvenile offenders do not have the same incentives to appeal.

However, there are scenarios when a judge’s disposition should be reversed. If the young offender is innocent, if their rights were violated, or if the court order is unacceptable, a criminal appeals lawyer can and should appeal the judge’s decision.

The Juvenile Appeals Process

Before filing a formal appeal in a juvenile case, it’s necessary to outline the different stages of the juvenile criminal justice process. At each stage, there are opportunities to contest. And in some cases, ask for a new hearing on certain issues.

The California juvenile justice process involves the following:

Intake

When a minor is arrested, their fate is initially decided by a probation officer. Depending on the crimes’ severity, a juvenile may simply be released on probation. The officer may also order the youth to be detained and recommend that the District Attorney (DA) file formal charges.

Detention Hearing

When the minor his detained, or when the DA files criminal charges, a hearing will determine whether detention should continue, or if the juvenile should be detained until the next hearing.

At this stage, a Los Angeles juvenile defense lawyer can contest the the DA’s petition and present evidence. If they are unsatisfied with the result, they can request a new hearing.

Fitness Hearing

In some cases, the DA may request that the juvenile be tried as an adult. For very serious crimes, there is no need for a fitness hearing because adult charges are mandatory.

During this hearing, the DA will present evidence as to why the minor should be treated as an adult. Of course, the defense can argue why the case should stay in the juvenile system. This is an extremely important stage of the process because appealing this decision is very difficult.

Jurisdiction Hearing

If the case stays within the juvenile system, the next stage is the jurisdiction hearing. Like in a criminal trial, this hearing’s purpose is to determine what actually happened. Both sides are allowed to present evidence and cross-examine witnesses. However, the facts will not be decided by a jury. If the judge determines that the available evidence points to the juvenile’s guilt, the case will move to the next stage.

Disposition Hearing

During this part of the process, the focus is not only on how to punish a juvenile but also on how to treat or rehabilitate them. Another important difference is that a judge can decide to “set aside” or cancel the decision about jurisdiction. In other words, the verdict can be canceled if their legal team is successful at this stage. If not, the judge will determine the conditions of detention and probation.

How Can I Appeal My Child’s Verdict?

There are three ways to appeal a juvenile case. First, and while it’s not a formal appeal, your lawyer should try to get a new hearing if the judge rules against your child at the detention phase.

Second, if the judge rules that your child should be treated like an adult, you may file a writ with the Court of Appeals. This isn’t a formal appeal either, but it can delay the process and keep the case in the juvenile system.

Third, you can file an official appeal within 60 days of the disposition hearing. As with a criminal case, your appeal must show that a legal mistake hurt your son’s or daughter’s case.

There are many possible arguments to make in favor of an appeal. A lawyer may argue that evidence was improperly included or rejected, or that the authorities violated your child’s rights at any point during the process.

A California Juvenile Lawyer Can Help

When a minor faces criminal charges, their future hangs in the balance. With so much at stake, these cases require quick, thorough, and aggressive action from the defense.

If you or a loved one received a bad result after a juvenile disposition hearing, you must act fast if you want to appeal.

Call Spolin Law P.C. today at (310) 424-5816, or reach out online for help appealing a juvenile criminal verdict.


Aaron Spolin’s Book, Witness Misidentification in Criminal Trials, is Admitted to United States Library of Congress.

Posted on Tuesday, February 4th, 2020 at 5:11 am    

This past month the United States Library of Congress admitted into its collection Witness Misidentification in Criminal Trials: Reforming Identification Procedures to Protect the Innocent. The book, written by criminal appeals attorney Aaron Spolin, discusses the dangers of witness misidentification, which is the leading cause of wrongful convictions in the county.

The book summary detailed on the back cover is copied below:

    Witness misidentification is the leading cause of wrongful convictions in the United States. Among former death-row inmates proven innocent by post-trial DNA evidence, more than half of their cases involved a mistaken eyewitness identification. And the problem is not limited to death-row inmates: a comprehensive 2012 study by Marvin Zalman, a professor of criminal procedure, concludes that up to 2,000 individuals are wrongfully convicted of felonies each year. Combating witness misidentification is perhaps the biggest step we can take to fight his injustice. This book discusses the problems of witness identification, shows how identification procedures contribute to faulty convictions, and suggests reforms that would drastically reduce the potential for misidentification. Aaron Spolin is an award-winning criminal appeals attorney and former prosecutor. He leads Spolin Law P.C., a firm that handles criminal appeals, writs, and post-conviction relief.

The book, which has a Library of Congress Control Number of 2019-919901, can be purchased at major booksellers, including here at Amazon

For more information about wrongful convictions or to speak with one of the attorneys at Spolin Law about a particular case, call us at (310) 424-5816.