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  1. #11
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    Apr 2019
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    12

    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    thanks you for all your response very much.

    about the time
    (1) I made a little change for the time of the arrest to protect my friend's privacy, so when he started this petition, it was barely within 2 years.


    about "we"
    (2) sorry, it was just a typo for "we". My friend does not speak English well, I just help the translation.

    (3) For this case, it is obvious that the police made a wrong decision and arrested the actual victim, without careful investigation. However, it is never easy for the authority department to admit they made a mistake. And the law hinders innocent people to get their innocence back very quickly.

    My friend is desperate now after reading these responses. Could any one be still helpful for this actual victim?

    (pls do not be picky about my expression, my English is not very good either; he has enough evidence to prove he is the actual victim, so do not picky about the statement here)
    thanks again!

  2. #12
    Join Date
    Jan 2006
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    38,734

    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    The more I read the statute, the more confused I become and maybe Iím just really wrong but...


    Re Bedrossian:
    I canít see anything that says you have to wait until the statute of limitations has expired prior to filing for relief. I donít see the basis for the denial by the judge originally denying relief and I donít see the basis for Bedrossian appeal. I find it hard to believe the original and appeals court got something so wrong so I must be missing something.....but what?




    The only mention of the pertinent statute of limitations is in reference to the time allowed if the initial petition is not responded to. It states that if the petition is not responded to within 60 days after the pertinent statute of limitations has expired or within 60 days in cases where the statute of limitations has already expired the petition is deemed to have been denied.

    That is merely stating that if a petition is not responded to within those time frames it is considered denied under the law. It does not say a petition is premature if filed before the pertinent sol has expired. It suggests if they donít respond to the initial filing and the pertinent sol has not expired, the petition is not deemed denied until 60 days after the sol has expired, that sets up some very odd situations but since your application was denied, it is irrelevant. . Where the sol is quite long (5 years as an example) if the police or prosecutor did not respond to the initial petition, the petitioner would have to wait 5 years and 60 days after the arrest for the petition to be deemed denied. That is an odd requirement especially since if the petition is responded to and denied, that section doesnít apply and one can immediately proceed to the next available action and file for a hearing before the court.



    since your petition was formally denied, that doesnít apply. Furthermore, it states any petition that has been denied can be furthered by petitioning the court for a hearing. I donít see where the sol (statute of limitations) prohibits you from filing with the court and I donít see where the lack of the sol expiring is a basis to deny your petition, regardless what Bedrossian states.


    Furthermore, when considering section l (L), it actually says you have only two years after the action of the arrest or filing of charges to actually apply for relief. It allows this limit to be waived upon presentation of good cause.

    so, the law says you have only two years to file for relief without having to prove why you delayed the petition. This shows the law does not Want one to wait until the sol has run on the original charge considered. The state has placed an urgency on filing a petition for relief to as soon as possible by applying this 2 year limit.

    Several other sections of the law also allow for immediate request for relief. Section (d) allows for immediate relief by a judge upon dismissal of charges. Section (c) allows a party to file for relief immediately after charges are dismissed.

    So I say again, I find no requirement the petitioner wait out the pertinent sol of the initial charge considered. In fact, I find the law urges one to file for relief asap. I cannot agree with Bedrossian because I find no obligation to wait out any pertinent sol.



    Now, none of that removes you (your friend) from the obligation to support your petition. The law doesnít appear to be a situation where the state first has to prove their case and the defendant rebut any proofs to be deemed not guilty. It specifically obligates a petitioner to support their petition and then it allows the state to present evidence that would show the petition should be denied. You have to make your case there was no reasonable cause to effect the arrest I.e. you were factually innocent
    In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made



    It suggests possible sources of support for the petition:

    any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant, and reliable.






  3. #13
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    Jun 2017
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    California
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    jk, since I practice criminal law in CA and have for 30+ years, I think I know what I'm talking about....

  4. #14
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting LegalWriter
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    jk, since I practice criminal law in CA and have for 30+ years, I think I know what I'm talking about....
    While that’s a bit arrogant, I’ll excuse that given your claim but if you disagree with me, support it. Show me where my statement is incorrect. To do so you have to show the statement

    for arrests occurring on or after Jan 1, 1981 and for accusatory pleadings filed on or after Jan 1, 1981


    doesn’t mean precisely what is written.

    The plain English reading of the statement supports my position. The very first statement speaks to issues involving arrests with no concern for whether charges were filed or not. The second statement speaks to when charges are filed. How can you not read that as speaking to two separate situations? For you to be correct, it would require the initial statement regarding arrests was superfluous. If the section does not address situations where only arrests are concerned, there would be no reason to mention arrests at all. Are you suggesting the legislators include superfluous statements in the laws they write or is it more proper to accept what they have written to mean precisely what is Written?


    l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. Until January 1, 1983, petitioners can file for relief under this section for arrests which occurred or accusatory pleadings which were filed up to five years prior to the effective date of the statute. Any time restrictions on filing for relief under this section may be waived upon a showing of good cause by the petitioner and in the absence of prejudice.





    and since you’re here, show me where Bedrossian is anywhere close to being correct. I do not see any obligation a petitioner wait until the germane sol has expired. This is a serious request. I find it hard to believe the original court and the court of appeals are wrong but for the life of me, I can’t see where the original premise by the trial judge was correct.

  5. #15
    Join Date
    Sep 2010
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    19,246

    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    You're misinterpretting the first "AND" in the statute. That first phrase is an "applicability" qualifier. (L) applies to both accusatory pleadings and arrests (after Jan 1, 1981). Hence the rest applies to either arrests or pleadings or both. The rest of the statute uses the OR to indicate that those passages can be used on either event.

    It's like saying "This statute applies to cars and trucks..."

  6. #16
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    Jun 2017
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    California
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting flyingron
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    You're misinterpretting the first "AND" in the statute. That first phrase is an "applicability" qualifier. (L) applies to both accusatory pleadings and arrests (after Jan 1, 1981). Hence the rest applies to either arrests or pleadings or both.
    I'm not misinterpreting anything. "Section 851.8, Subdivision (l) Applies to Limit the Time for Petitions Filed Under Section 851.8, Subdivision (c)." People v. Bermudez (2009) 172 Cal. App. 4th 966, 969. Subdivision ( c) is clear, "(c) In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred..."

  7. #17
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting LegalWriter
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    I'm not misinterpreting anything. "Section 851.8, Subdivision (l) Applies to Limit the Time for Petitions Filed Under Section 851.8, Subdivision (c)." People v. Bermudez (2009) 172 Cal. App. 4th 966, 969. Subdivision ( c) is clear, "(c) In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred..."
    where do you find (l) addresses c specifically and is limited to c?

    Fly-fish


    this case supports my statement that you are limited to 2 years to petition for relief. It also states that ignorance of the ability to petition was not acceptable to have the sol set aside.

    https://casetext.com/case/people-v-bermudez-68


    it also flies in the face of the Bedrossian appeal and shows that decision was incorrect as one has only two years within which to apply for relief. If one was compelled to wait out the time of the original charges statute of limitations, it would prohibit all but the least serious offenses be allowed.


    Legalwriter


    from the discussion in the case you cited

    Nothing in the language of section 85l.8( l) or the aforementioned legislative history limits the two-year filing period to any one of the three classes of individuals entitled to relief under section 851.8. This suggests the Legislature intended the limitations period to apply to anyone entitled to petition for such relief.



    that clearly refutes your argument.

  8. #18
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    California
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting jk
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    where do you find (l) addresses c specifically and is limited to c?
    Can you read? That is a direct quote from People v. Bermudez (2009) 172 Cal. App. 4th 966, 969.

  9. #19
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    Jan 2006
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting LegalWriter
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    Can you read? That is a direct quote from People v. Bermudez (2009) 172 Cal. App. 4th 966, 969.
    Can you Read? I provided a pertinent quote from the same opinion. Yours merely states section l applies to section c. It does not say it applies exclusively to section c and my quote specifically states it doesn’t.

    the fact is, those statements you are leaning on donít speak to anything other than stating which applicants, based on the dates of the stated action, would fall under the new two year limitation.

    So, not only are you misinterpreting the ďandĒ, you are misinterpreting the entire sentence. It does nothing other than to specify, based by the date of the action that got the folks in this predicament to start with, who has two years and who has some other time to file their petition. It does nothing to limit the application of the time limit other than that.




    So, practicing law, in California, for 30 years? It would appear you need more practice.

  10. #20
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    Jun 2017
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    California
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    423

    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    I'm not going to waste anymore time giving you a lesson in interpreting a statute or its legislative history. Like it or not, the OP's friend cannot petition for factual innocence any sooner than the time that the statute of limitations on his offense has expired which, for a 273.5, is 3 years. If a criminal complaint is filed and dismissed by the DA or court, he has two years from that dismissal to petition for relief. At this point it is unlikely they will file but if they do, he can rest assured, it will filed as a felony...

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