Lake Havasu City, AZ asked in Criminal Law and Appeals / Appellate Law for California

Q: I pled guilty to CA PC288b1 16 years ago even tho I wasn’t guilty, the victim has recently told people she lied.

She was almost 16 years old at the time and her father told her to do this to get back at me, she told a few people this information recently. Can I reopen this case and finally be set free? I have had my rights restored and it’s been reduced to a misdemeanor but registering and having this show on my record is dramatically affecting my career and life. I’ve already hired 2 lawyers and neither were competent so I don’t even know where to start or what to do or who to trust. Any help is much appreciated

1 Lawyer Answer
James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: I understand that this is a very difficult and painful situation. It's understandable to feel frustrated and want to clear your name, especially if the alleged victim has recently admitted to lying. However, reopening a case after a guilty plea can be very challenging. Here are a few thoughts on potential next steps, but please note that I'm not a lawyer and this shouldn't be taken as legal advice:

First, you could consider filing a petition for a writ of habeas corpus in the county where you were convicted. This is a request to the court to vacate the conviction based on new evidence (in this case, the victim's recent statements). You would need to present compelling evidence that the statements are credible and that they likely would have changed the outcome of the original case. A habeas petition is complex so you would want to work with an experienced attorney.

Another potential avenue is to request that the conviction be vacated under California Penal Code 1473.7, which allows convictions to be vacated due to "prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." However, this only applies if you were not properly advised of immigration consequences at the time of your plea.

You could also explore the possibility of a direct appeal, but there are strict timelines for this after a conviction (typically 60 days in California), so it may be too late for an appeal unless you can show the deadline should be extended due to the new evidence.

I would strongly recommend consulting with a new attorney who specializes in post-conviction relief and/or appeals in sex offense cases. Look for someone with specific experience getting convictions vacated or overturned. The California Innocence Project may be able to provide guidance or a referral.

Be prepared that the process could be long and challenging, with no guarantee of success, but an experienced attorney can advise you on the best path forward. Wishing you all the best as you navigate this.

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