Legal Question in Criminal Law in California

My boyfriend is a convicted felon with a volient offince that is ten to twenty years old . Can he get the strick removed or can the statute of limitions be used ?

Asked on 9/26/13, 2:23 am

1 Answer from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

Strikes don't expire, so there is nothing akin to a statute of limitations which would help your boyfriend. They can only be "removed" if the conviction itself is negated by a successful appeal or habeas petition, expungement, a pardon, or a finding of actual innocence. In practical terms, this means the answer is almost certainly no.

Your boyfriend probably had an appeal long ago and lost. Even if he didn't, it's too late to start one now.

He can petition for a writ of habeas corpus in state court if he is still in physical or constructive custody, such as parole or probation. My guess is that he isn't.

Felonies generally cannot be expunged. Some can be retroactively reduced to misdemeanors, which can then be expunged. But violent felonies generally can't be reduced. And even when a convict is eligible for expungement, the court can deny his request. (I won't try to explain the criteria for expungement here.)

He can also ask the governor for a pardon. The governor will almost certainly say no. Your boyfriend would need to have a compelling story just to get a realistic chance at a pardon.

That leaves a finding of actual innocence. It's just what it sounds like -- a ruling by a judge, based on evidence, that your boyfriend did not commit the crime of which he was convicted. Even convicts who really are innocent are seldom able to get such a finding.

HOWEVER, if your boyfriend is convicted of another crime that could become a second strike, the judge will have some discretion to disregard the prior strike and sentence him as if it wasn't on his record. (She can't disregard the conviction itself, but she may not have to treat it as a strike.) This process is called "striking the strike", which is a confusing label. The strike is not actually stricken from the defendant's record as the name implies. Instead, it is disregarded on a one-time basis. If the same defendant is convicted of yet another crime in the future, the strike will still be there -- and the judge on that case will be less likely to ignore it.

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Answered on 9/26/13, 11:03 am

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