SPOLIN LAW WINS APPEAL IN COURT OF APPEAL.Published on April 22, 2021
Spolin Law achieved justice on another case just a few days ago when the firm’s attorneys successfully overturned a prior court decision denying their client the right to petition for post-conviction relief.
In 2012, the client was allegedly involved in the fatal shooting of a local man, described as a child molester. The evidence indicates that if the client was even present, he certainly was not the one to pull the trigger. Nevertheless, the client was convicted of second-degree murder (Penal Code 187) later that year and sentenced with an indeterminate term of 20 years to life in prison.
The passing of Senate Bill 1437 (SB 1437) in 2018, however, offered a sliver of hope for the defendant. This piece of legislation amended the “the felony murder rule and the natural and probable consequences doctrine, … to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”
In January of the next year, the client filed a petition for re-sentencing under SB 1437. However, his petition was rejected by the Superior Court. In November 2019, the court issued a 28-page written decision explaining its judgement. The lower court asserted that the client failed to satisfy his prima facie burden by failing to provide sufficient evidence to proceed with a hearing.
Defeated one again, the client reached out to the attorneys at Spolin Law. Aaron Spolin and Jeremy Cutcher were the primary attorneys involved in the appeal. In the lengthy Opening Brief and Reply Brief submitted by the firm, the attorneys argued that the court was wrong for deciding that the client failed to make a prima facie case and the court was also wrong for pre-judging the evidence without a hearing.
The California Court of Appeal sided with Spolin Law and the client, determining that the defendant did in fact meet his prima facie burden and that the Superior Court must conduct a hearing. (Please note that prior successful outcomes do not guarantee a similar result on a future case). Mr. Spolin, Mr. Cutcher, and the client himself are all excited for the upcoming hearing and is ready to fight for the justice that the client deserves.
To speak with Mr. Cutcher, Mr. Spolin, or any attorney at Spolin Law about your own case, call us at (310) 424-5816.
How Long Does a California Appeal Take?Published on April 19, 2021
Filing a criminal appeal in California is oftentimes a drawn-out and complicated process. If you plan on taking appellate action, knowing the basics of how it functions is crucial. The length of this appeals process varies from case to case, ranging anywhere from a couple of months to a couple of years. Nevertheless, while some cases may take longer than others to resolve, it is important that all appeals are filed quickly after a conviction sentencing.
Before filing, you must first confirm that you have a case that warrants an appeal. It is important that you reach out to an appellate attorney, who will look through the details of your case to identify any legal errors and advise you on what the next steps may be.
If the attorney confirms you are eligible, and you decide to proceed with an appeal, you will start the appellate process by filing a Notice of Appeal in the superior court. For misdemeanor cases, the deadline to file is 30 days from the date of judgement. Felony offenses, on the other hand, hold a 60-day deadline.
While direct appeals must be filed within this 30- and 60-day window, there are other types of post-conviction relief that may be submitted after this deadline has passed. Common examples include a California Writ of Habeas Corpus and an Application for Commutation of Sentence.
Can I File a Late Appeal?
In some cases, extensions may be granted for defendants who miss the designated deadline. In compliance with the 2018 California Rules of Court, in instances of public emergency, defendants will receive a longer time window to appeal.
Additionally, in the event that your attorney fails to provide proper assistance during the appeals filing process, the traditional 30- or 60-day deadline no longer applies. For example, if your attorney does not inform you of your right to appeal or provides misinformation about the deadline of your appeal, you may be eligible for an extension.
Furthermore, cases of constructive filing also serve as proper grounds for an appellate extension. This occurs when the appeal does not make it to the courthouse on time despite genuine efforts from the defendant. Filing the appeal with the wrong court or mailing delays that are out of your control are just some instances in which a constructive filing extension may be offered.
Certificate of Probable Cause
In addition to submitting a Notice of Appeal, you must file a Certificate of Probable Cause (CPC) which legitimizes the basis of the appeal. The court then receives 20 days to review the submission and either grant or deny the CPC.
Notice of Designation Record on Appeal
Within 10 days of filing your Notice of Appeal, you must also file a Notice of Designation Record on Appeal. Doing so will notify the involved parties (including the court clerk, court report etc) and facilitate the collecting of trial records and transcripts which will be used in the appellate proceedings.
Once the primary paperwork has been completed and all the trial records have been compiled, the next step in the appellate process is the preparation of the opening brief. In an opening brief, your appeals attorney provides a summary of your trial, presents their argument, and requests a certain outcome.
The opening brief is expected to be submitted within 40 days of when the Notice of Designation Record on Appeal was filed. This is followed by the respondent’s brief which is filled by the opposing counsel within 30 days of the opening brief. Lastly, once the respondent’s brief is filed, the appellant is given 20 days to counter the respondent’s brief what is called the reply brief.
The next steps in the appellate process are the oral arguments, during which attorneys will be given the chance to argue their case in person and answer any lingering questions the presiding judge may have. You can expect these oral arguments to take place a few weeks after the filing of the briefs.
Contact Spolin Law P.C. About an Appeal in California
If you or a loved one plan on appealing a criminal conviction or have questions about your eligibility for an appeal or extension, don’t hesitate to reach out to Spolin Law P.C..
What Are Mitigating Circumstances?Published on April 14, 2021
In criminal law, mitigating circumstances are factors that help to lessen the guilt of an offender and encourage the judge to be more lenient in their sentencing.
What are some examples of mitigating circumstances?
There are two types of criminal mitigation: positive mitigation and negative mitigation.
When using positive mitigation, attorneys try to paint a positive, more holistic picture of the defendant. To do so, they may speak of their devotion to family, hard work, or loyalty. This strategy uses the defendant’s positive traits to show that their illegal actions were completely out of character.
Negative mitigation on the other hand attempts to highlight any hardships or difficult circumstances that may have pushed the defendant to commit the crime. For instance, details about growing up in an abusive household or a history of mental illness are examples of mitigating circumstances that may be used to argue a lesser sentence.
Other common mitigating circumstances include:
- The defendant having no prior or significant criminal record
- The defendant playing a minor role in the crime
- The defendant recognizing the error of their ways
- The defendant making restitution to the victim of their crime
- The defendant acting out of necessity
- The defendant having a difficult personal history
- The defendant struggling with a drug or alcohol addiction
How can mitigating factors impact the outcome of a case?
When determining a felony or misdemeanor sentence, judges assess these mitigating factors as well as any aggravating circumstances that arise. In contrast to mitigating circumstances, aggravating circumstances increase the defendant’s culpability and encourage heavier punishments. Some examples include a lack of remorse, a leadership role in the crime, or history of criminal behavior.
If a case’s mitigating circumstances outweigh the aggravating circumstances, the judge is likely to be less aggressive in their ruling. Therefore, outlining the mitigating circumstances behind a crime can become a vital tool when facing severe criminal charges, and in some cases could even be the difference between life and death.
Spolin Law P.C.’s success rate is based on our strong desire to win each case we handle. Call us or reach out online to learn how we can handle your Criminal Appeal.