Criminal Law Questions? Ask a Criminal Lawyer.
Thank you for using JustAnswer!
I am sorry to learn of your circumstances. From what you've described, you have already been sentenced.
CA Penal Code 1170.9 does not apply to you because that law requires, in part: "the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service."
In your situation, you were already sentenced.
1170.9 is only available to be used pre-sentencing .... not post-sentencing.
So, the answer to your question is, regrettably, "no."
I was encouraged by another veteran to talk to my public defender about this. I was never evaluated for ptsd before this happened.
You can certainly contact your public defender if you'd like.
If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
What about the entrapment?
There's no entrapment, in the legal sense, from what you've described.
I was deliberately lied to in order to break the law.
There is no entrapment, in the legal sense, from what you've described.
when an officer of the law deliberately coaxed someone to break the law and they do not have a history of breaking the law, that constitutes entrapment.
However, that issue is now moot anyway, since you pled guilty.
I did plead guilty because I didn't have the money to pay for a lawyer to go to trial. The public defender gave me something to fear when he denied entrapment and told me if I go to trial, I would be looking at 2 years minimum behind bars.
He encouraged that I plead guilty to the least of 3 offenses so that it did not go to trial or else I was looking at jail time.
The information given to you by your public defender is correct.
Of course, you had the right to plead not guilty and take the case (all charges) to jury trial and have the jury decide your guilt/non-guilt.
Your attorney made a recommendation and you took that recommendation.
There's no going back and undoing that now.
And he told me I didn't have a chance although I insisted on arguing entrapment
I have been encouraged to file an appeal
Have I answered your original questions?
This goes a little bit deeper than the original questions. My question is, what can I do as a next step in my favor?
You know what the circumstances are and you know what my side of the story is. I've been as much of an open book as I can be. If you're working in my favor I need to know what I can do next that will help myself in this situation.
If you want to try to undo something, you first have to try to file a motion to withdraw your guilty plea.
And that means I would have to plead insanity correct?
You do that with your current judge. It's not an appeal.
No, it does not mean that you would have to plead insanity.
You will have to convince the judge that you did not enter your guilty plea knowingly and voluntarily.
Really? This is the first I am hearing this.
You will also have to demonstrate to the judge why you are not guilty of the offense.
In knowing what you know of my situation, what are the possibilities of being deemed not guilty?
I will be held in contempt of court then for committing perjury if I demonstrate I did not enter into the plea knowingly and voluntarily.
From the facts that you've described, I do not see a basis to withdraw the guilty plea at this stage of the game.
So what are my practical options then?
You can attempt to withdraw the plea and ask that any future plea be taken pursuant to 1170.9.
And that would work?
You may want to hire a local criminal defense attorney to assist you in preparing the paperwork to pursue that strategy.
Would it be "considered"?
A judge has to consider all motions.
Oh boy...racking up the debt already.
I appreciate your time. I understand and will take your statement under advisement. Have a good 4th.
Thanks, XXXXX XXXXX you.
You can select ACCEPT to close this thread.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).