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  1. #1
    Join Date
    Apr 2019
    Posts
    12

    Exclamation Challenge for Petition of Actual Innocent Within Statute of Limitation

    Hi everyone,
    I am sorry to disturb you again for this issue. My friend was arrested two years ago as felony, and now faces a big challenge for the petition of factual innocence:

    here is the whole story:

    1. On 08-01-2017, my friend was arrested in California; he was taken to jail, got finger-prints and et.al. He spent one day there.
    2. He went out of jail after paying the bond Co..
    3. On the bail Receipt it says: 273.5(A) PC …Court: xxxxx. Felony Arr. Court date: 08-07-2017 13:30…
    4. Then he hired a lawyer to handle this case. Several days later, the lawyer said, the case was not filed. So he did not have to show up in the court.
    5. Several months later, the lawyer got the certificate of release for him. The certificate says according to Penal code section 851.6 (a) it was a detention, not an arrest. (b) his charges were released on 8-4-2017;
    6. The prosecutor (or the supervisor of the police station or the detective; do not remember now), said that nobody will touch a finger on it, and said it is dying in their hands. (Heard from the lawyer).
    7. Several weeks ago my friend did the petition of factual innocence ( Penal Code section 851.8) first to the authority department and then to the court with very strong evidence.
    8. Several days ago, the DA sent my friend an “opposition to motion” correspondence. In the correspondence, DA did not mention any evidence or their opinion about the case itself, at all. They merely said the petition is too early and my friend has to wait for 3 years (two years has passed). And they cited the case of Bedrossian to support them. Here is the case link . (https://www.leagle.com/decision/incaco20180227034).

    9. The court date is about 10 days later.
    ---------------------------------------
    My questions:
    (1) As far as I understand, in the case of Bedrossian, Bedrossian seemed fail to provide extra evidence to prove his innocence and he mainly tried to do the petition because the DA did not sue him, am I right for this point?
    (2). If I am right for question 1, would my friend ‘s case be a different one as he provided very strong evidence?
    (3) Did anyone one know any similar but successful case we could cite in the court; (successful petition of actual before the statue of limitation expires) ? if you happen to such case(s), pls let me know ASAP as the court date is coming soon.
    (4) We submitted strong evidence to the court to prove that My friend is not just innocent and he was the actual victim of demotic violence. Is there any legal provisions there we can use to talk about this?
    (5) Is there any other arguments we could use to fight for his innocence in the court?

    Thank you so much for your help in advance, any response count!
    ( FYI: he has a lawyer, but he still needs help here as this is a super challenge case).

  2. #2
    Join Date
    Jan 2006
    Posts
    38,789

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

    If charged as a felony, the statute of limitations to prosecute the case is three years. Unless the state dismissed the charges with prejudice, it can still be prosecuted. I suspect that is why he was old it’s too soon. He is likely going to have to wait out the sol before doing anything.

    Based on the case cited it has nothing to do with innocence or guilt. It’s merely a time game and he will apparently have to wait out the statute of limitations as did Bedrossian.

  3. #3
    Join Date
    Jun 2017
    Location
    California
    Posts
    424

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

    Quote Quoting fly-fish
    View Post
    Hi everyone,

    My questions:
    (1) As far as I understand, in the case of Bedrossian, Bedrossian seemed fail to provide extra evidence to prove his innocence and he mainly tried to do the petition because the DA did not sue him, am I right for this point?
    (2). If I am right for question 1, would my friend ‘s case be a different one as he provided very strong evidence?
    (3) Did anyone one know any similar but successful case we could cite in the court; (successful petition of actual before the statue of limitation expires) ? if you happen to such case(s), pls let me know ASAP as the court date is coming soon.
    (4) We submitted strong evidence to the court to prove that My friend is not just innocent and he was the actual victim of demotic violence. Is there any legal provisions there we can use to talk about this?
    (5) Is there any other arguments we could use to fight for his innocence in the court?
    1. No. First, DA's don't sue, they prosecute. Bedrossian lost because the statute specifies that it can't be filed before the applicable statute of limitations has expired.
    2. No, you can't file it until after the statute of limitations has expired.
    3. No. The court doesn't have the legislative authority to act contrary to the specific dictates of the statute, which dictates the time to be "within 60 days after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed." You can't seek it until the statute has run out.
    4. No. No evidence can be presented because it can't be brought before the court at this time.
    5. No. See above.

  4. #4
    Join Date
    Apr 2019
    Posts
    12

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

    thanks for all the responses.
    as far as i know, there is another legal provision which says the petition to seal the record must be started within two years. could we use this conflict legal provision to fight against in the court?

  5. #5
    Join Date
    Jan 2006
    Posts
    38,789

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

    Post the provision you believe requires you to initiate an action within. 2 years so somebody can review it. Given the case you cited says you can’t act during the sol to prosecute, I suspect you are misreading something.

  6. #6
    Join Date
    Sep 2010
    Posts
    19,288

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

    I think he is talking about 851.8(l). It would seem ineligibility at an earlier time fits in the description of "good cause."

  7. #7
    Join Date
    Jan 2006
    Posts
    38,789

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

    This one?


    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.
    while he ma an action available under this statute (didn’t read thoroughly enough to know for certain) it would appear this section is a limitation that makes it available if the action is taken within 2 years. Op has stated it has already been two years so it would appear this section would not be available unless he can meet the standards set in the last line.


    It also appears it is an action based upon the belief of the arresting agency that there is a factual innocence. In other words: you have to have the cops admit they were wrong. For some reason I see a better chance of improving my life by beating my head on a wall.


    It also appears this is a separate action; one that doesn’t involve a court hearing. Other than that, op needs to read the section thoroughly to ensure it applies to his situation.

  8. #8
    Join Date
    Jun 2017
    Location
    California
    Posts
    424

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

    Subsection (L) applies to cases where there has been an accusatory pleading filed--i.e. a formal criminal complaint which hasn't happened in the scenario the OP presented. The statute used to read that if a complaint was filed and dismissed, the person had 5 years from the date of the arrest or the date the complaint was filed to petition for a finding of factual innocence. The law changed and that is reflected in the subdivision--it shortens the time to seek factual innocence where a formal complaint is filed to 2 years instead of 5 years. Again, it doesn't apply to the OP's facts.

  9. #9
    Join Date
    Jan 2006
    Posts
    38,789

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

    Quote Quoting LegalWriter
    View Post
    Subsection (L) applies to cases where there has been an accusatory pleading filed--i.e. a formal criminal complaint which hasn't happened in the scenario the OP presented. The statute used to read that if a complaint was filed and dismissed, the person had 5 years from the date of the arrest or the date the complaint was filed to petition for a finding of factual innocence. The law changed and that is reflected in the subdivision--it shortens the time to seek factual innocence where a formal complaint is filed to 2 years instead of 5 years. Again, it doesn't apply to the OP's facts.
    it applies to arrests and situations where there have been accusatory filings. They are two separate statements.

    As you can see they clearly differentiate between issues involving arrests and issues involving the filing of accusatory pleadings.


    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.

  10. #10
    Join Date
    Jul 2018
    Posts
    1,793

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

    Quote Quoting fly-fish
    View Post
    As far as I understand, in the case of Bedrossian, Bedrossian seemed fail to provide extra evidence to prove his innocence and he mainly tried to do the petition because the DA did not sue him, am I right for this point?
    This question is worded very poorly, but I think the answer is no. The primary holding of People v. Bedrossian is that a petition under PC 851.8 is premature if filed before the expiration of the statute of limitations for the underlying charge. This moots most of the rest of your questions.


    Quote Quoting fly-fish
    View Post
    Did anyone one know any similar but successful case we could cite in the court; (successful petition of actual before the statue of limitation expires) ?
    We? There is no "we" here. This has nothing to do with you, and it sounds very much like you may be committing the crime of practicing law without being licensed to do so.

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