Expunge Infractions In California

Effective on January 1, 2011, California will allow expungement of infractions 1 year after the person was sentenced. To have you infraction expunged, please The Law Firm of Higbee & Associates (RecordGone.com) at 877-573-7273. Higbee & Associates charges $595 for infraction expungement and offers a money back guarantee.

Expungement of infractions will be done pursuant to the recently modified Penal Code 1203.4a.

Revised 1203.4a Effective 1/1/2011 allows for expungement of infractions:

(a) Every defendant convicted of a misdemeanor and not granted probation, and every defendant convicted of an infraction, shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and up-right life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or nolo contendere and enter a plea of not guilty; or if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accu-satory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 12021.1 of this code or Sec-tion 13555 of the Vehicle Code. The defendant shall be informed of the provisions of this section, either orally or in writing, at the time he or she is sentenced. The defendant may make an application and change of plea in person or by attorney, or by the probation officer authorized in writing; provided, that in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if relief had not been granted pursuant to this section.

Free Expungement Seminar

If you live in Southern California and cannot afford an attorney, but need an expungement.

You should attend the free Expungement Education Workshop, Monday, October 18, 2010, 4:00 – 5:00 pm, at the Center for Working Families, 1900 Atlantic Ave., Long Beach, CA 90806.

Those who attend will receive information from subject-matter experts on certificate of rehabilitation; information on expungement of adult convictions & sealing of juvenile records; and assistance with completing required expungement forms.

You can also receive free information about expungement at http://www.recordclearing.org

Rhode Island Considering Expungement Law

Rhode Island law makers are considering H5045, which will allow some people convicted of multiple misdemeanors to have their record expunged.

The lead sponsor — freshman Rep. Michael A. Rice, D-South Kingstown — said he was aware of “a couple of cases” in his district of people who had racked up misdemeanor records in their teens and early 20s, “paid their debt to society” and straightened out their lives, but could not shake off the stigma of their youthful misdeeds.

Existing law allows a court to expunge a non-violent misdemeanor 5 years after completing the sentence. The waiting period for non-violent felonies is currently 10 years.

H5045, co-sponsored by Rice, Lally and Rep. Kenneth Carter, D-North Kingstown, would allow courts to expunge multiple misdemeanors, regardless of the age of the offender or the nature of the offense, which could include drunken driving and domestic abuse.

More soon...

Firearm Rights Restoration in Montana

Question Presented

Can someone with a misdemeanor conviction in California that contains a lifetime prohibition on firearm ownership purchase a firearm in Montana?
(A) What are the applicable misdemeanor convictions in California that carry a lifetime prohibition on firearm ownership?
(B) Does Montana law allow for a party to purchase a firearm if the party has a lifelong prohibition on firearm ownership?

Short Answer
Yes, in order for a party who carries a lifetime prohibition for possessing a firearm in California to obtain the right to purchase a firearm in Montana, they must either:
• Not have been convicted of a crime in California, which is equivalent to a Montana offense that would subject the person to an additional sentence under section 46-18-221 (this includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon) or;
• They must apply to have their right to purchase firearms reinstated. If the party must apply for reinstatement the process would require the petitioner to file their application with the district court for the county in which the person resides for a permit to purchase and possess one or more firearms, explaining good cause for the possession of each firearm sought to be purchased and possessed.

Discussion

(A) Applicable Misdemeanor Convictions in California that Carry a Lifetime Prohibition on Firearm Ownership

Any person who has been convicted of a felony, a specified misdemeanor, or a specified firearms offense; who is addicted to narcotics; who is the subject of a protective order; or who has been found by a court or mental facility to have certain mental disabilities is prohibited by California law from possessing firearms. In some instances, convictions may carry a lifetime prohibition from possessing firearms.

The following California misdemeanor convictions result in a lifetime prohibition:
• Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
• Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1), 12001.6(b).)
• Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
• Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
• A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)

Parties convicted of the above California statutes will not be automatically eligible to purchase firearms in Montana. These parties must petition the appropriate Montana district court for the reinstatement of their right to purchase firearms and the requested reinstatement will be held at the discretion of the district court judge.

(B) Montana Law that Provides for the Possession of a Firearm for Convicted Individuals

Montana Code Annotated 45-8-313 Unlawful Possession of Firearm by Convicted Person, provides that, subject to certain limited exceptions, no person shall possess a firearm if he or she has been convicted of a felony for which he or she received an additional sentence under section 46-18-221 (which imposes an additional sentence for offenses committed with a dangerous weapon); or an offense of another state or federal law which is equivalent to a Montana offense which would subject the person to an additional sentence under section 46-18-221. This includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon.
Further, Montana Code Annotated, 45-8-314 Lifetime Firearms Supervision of Certain Convicted Persons, provides that if any person is convicted of an offense referred to in section 45-8-313 shall, as part of the sentence imposed, be sentenced to life supervision by the state for the purpose of restricting the person’s right to purchase and possess firearms. However, there are still avenues available for a person with a lifetime prohibition under Montana law to obtain possession of a firearm.
Montana Code Annotated 45-8-314(2) states that a person subject to a lifetime prohibition may apply to the district court for the county in which the person resides for a permit to purchase and possess one or more firearms. The applicant must show good cause for the possession of each firearm sought to be purchased and possessed. The grant or denial of the application does not prevent the person from submitting another application, except that if the application is denied, another may not be submitted for a period of 12 months. The application must contain the following information: (i) the person's full name and any past or present aliases; (ii) the person's date and place of birth; (iii) the person's address; (iv) the person's occupation; (v) the make and model of each firearm sought to be purchased and possessed; (vi) the date and place of each conviction of an offense referred to in 45-8-313, the name of the offense, the state and county in which the offense occurred, the sentence imposed, the place or places of incarceration, and the date of discharge from supervision for the last offense; (vii) the name and business address of the person's last probation or parole officer; and (viii) any other information considered necessary by the court. 

Considering the relevant Montana statutes, a person who is convicted of a misdemeanor in California that carries a lifetime prohibition maybe able to purchase firearms in Montana. This is based on the logic that if a person with a Montana conviction can apply to have their lifelong prohibition for the possession and purchase of firearms reinstated then the same opportunity will be available to a person with a California conviction. Thus, as long as the misdemeanor conviction in California is parallel to a conviction in Montana, the party with the California conviction should be able to petition for their reinstatement of firearms purchasing rights.

Conclusion
While a person convicted of a California misdemeanor that carries a lifelong prohibition on the purchase for firearms may not automatically qualify to purchase firearms in Montana, their eligibility to petition the right to purchase and possess a firearm seems unrestricted. In either situation, our client has options to restore his right to purchase and possess firearms in the state of Montana.

Possible Way To Get Around Misdemeanor DV Firearm Prohibition in CA

This topic will be explored more later, but it should be thrown out their for comment and contemplation now:

Since the federal probation on misdemeanor domestic violence cannot be lifted by the state unless (1) the state took away the firearm rights and (2) the state took an action to restore the rights, those convicted of a misdemeanor DV in CA are in worse shape when it coms to firearm rights than those convicted of felony DV in CA.

This anomaly is created by the fact that the federal prohibition on firearm ownership of those convicted of domestic violence only applies to misdemeanors— and apparently not misdemeanors that were pled down after sentencing. So someone convicted of felony DV can have their case reduced from a felony to misdemeanor (which eliminates CA's prohbition on felon's owning a firearm) and the federal law will not apply to the reduced misdemeanor conviction because it was reduced post-sentencing.

Here is where the possible way around the federal prohibition comes into play. A CA court and change the classification of a sentence pursuant to Penal Code section 17(b). Though it has probably never been attempted, but a person can ask a court— even many years after completing the sentence, to increase the sentence from a felony to misdemeanor, and the reduce it back from felony to misdemeanor.

So, the state would take away the person's firearm rights by making the case a felony, and then restore the rights by making it a misdemeanor. This action, as contrived as it may seem, very well may take the petitioner out of the purview of the federal firearm ban.

More soon...

Expungement of Infractions in California

Quick note.... California Penal Code 1203.4 does not allow expungement of offenses that are classified as infactions. The legislature probably deemed infractions too insignificant to justify the burden placed on the court. However, in the post-9-11 economy, background checks are utilized by more than 80 percent of employers. Our law firm receives several requests to expunge infractions a month from people who were denied employment because of an infraction.

To date, we have not challenged this law. However, reading some case law leads me to think that a challenge based on equal protection grounds might be successful.

In particularly, Newland v. Board of Governors of California Community Colleges, 19 Cal.3d 705, 566 P.2d 254

"We turn therefore to plaintiff's argument that the statutory requirement for a certificate of rehabilitation denies misdemeanants to equal protection of the law because it discriminates in favor of felons and against misdemeanants. The decisions clearly hold that a legislative classification, such as that involved here, violates the constitutional requirement of equal protection of the law unless it rationally relates to a legitimate state purpose. Neither our cases nor those of the United States Supreme Court have settled on a particular verbal formula to express this proposition. Some decisions require that the classification ‘bear some rational relationship to a conceivable legitimate state purpose’ ( D'Amico v. Board of Medical Examiners (1974), 11 Cal.3d 1, 16, Cal.Rptr. 786, 797, 520 P.2d 10, 21); others that the classification must rest upon ‘some ground of difference having a fair and substantial relation to the object of the legislation’ ( Reed v. Reed (1971), 404 U.S. 71, 75-76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225; Brown v. Merlo (1973), 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212)."

And..

"This statutory discrimination against misdemeanants can claim no rational relationship to the protective purpose of section 13220.16. This amendment stands as a legislative recognition that many of the persons barred for life under the unamended version of section 13220.16 were fit to teach. The Legislature could not possibly or sensibly have concluded that misdemeanants, as opposed to felons, constitute a class of particularly incorrigible offenders who are beyond hope of rehabilitation."

The logic in Newland may successfully be applied to a Constitutional challenge to Penal Code section 1203.4 denial of relief to those convicted of infractions.

Check back in the future as we expand this topic or post details on a challenge.

New York Second Chance Act - Part II

FIRST IMPRESSIONS
revised 9/12/09 8:00 AM PST

New York State Senator John L. Sampson has sponsored Senate Bill 1708, "The Second Chance for Ex-Offenders Act.” This bill would provide many benefits to all New Yorkers. It is also worth noting that this version of the bill is considerably different, and in most ways better than the previous version of the bill that was reviewed on this site in November of 2008.

Confusing or Contradictory Waiting Periods

This bill would allow those convicted of non-violent and non-sexual misdemeanors (note: previous bill only applied to drug offenses) to have their record sealed when they meet the statutory requirements below:

(a) convicted of a misdemeanor offense and at least five years have elapsed since his or her last conviction for any misdemeanor or felony offense; or
(b) placed on misdemeanor supervision for an offense; and (c) at least five years have elapsed since the completion of the term of supervision; and

I am struggling to ascertain what Senator Sampson was trying to achieve in 5(a)-(c). I do not understand the logic or see the policy goal. The time requirements seem to be poorly written and may present some inconsistencies, see examples below:

EXAMPLE 1
D was convicted of a misdemeanor in 2006 and receives a three-year probation sentence. Under paragraph A, D becomes eligible in 2011. Under paragraph B and C, D becomes eligible in 2014. Which year does a judge use to determine eligibility? Should there be “sooner of” language?

EXAMPLE 2
D was convicted for a misdemeanor in 2004 and receives a three-year probation sentence. Using the (b) and (c), D would be eligible for relief in 2012. However, if D is convicted of another misdemeanor later that year and receives one-year probation sentence, D would become eligible for relief in 2010. Does this create incentive go commit another less serious misdemeanor to become eligible under paragraph (a)?

A revision may be clearer or make more sense if it read:

A record identified for sealing under subdivision two of this section may be sealed when (1) at least 5 years have elapsed since his or her last conviction for a misdemeanor or felony and (2) five years have elapsed since completion of the term of supervision for the case seeking to be sealed, if supervision was given.

This revision would make sure that petitioners have been law abiding for 5 years beyond the period of community supervision on their most recent offense, but allow sealing of older offenses without waiting for eligibility for a more recent offense (if that was Senator Sampson's intent).

I would prefer a simple waiting period that read:

"the sooner of at least 5 years have elapsed since completion of the term of supervision or since the completion of supervision and 8 years since the completion of the offense. No record shall be sealed if the petitioner has been convicted of a misdemeanor or felony within the past 3 years."

The second clause of the first sentence would allow for a shorter waiting period for those who committed their offense a year or two prior to being convicted. As clearing a record is, in part, a reward for rehabilitation, it makes sense to keep the time of law abiding behavior required prior to record clearing somewhat equal between those who were committed an offense and then began rehabilitating despite not being convicted until a year later and those who committed an offense and began rehabilitating after promptly being convicted.

There is no requirement to pay fines or restitution prior to petitioning to have a record sealed. This makes the bill different and better than laws in other states that require payment of fines and restitution before clearing the criminal record. If NY does want to protect society’s interest in recovering the fines, it should require that the defendant pay fines or perform community service in lieu of fines. Either way, it should continue to allow those who cannot afford to pay fines to obtain relief. Courts and victims always have the option to pursue collections in a civil case.

Missing Standard

Section 5 (b) says “The court, after consideration of evidence submitted by the petitioner in support of the petition and any evidence submitted by the district attorney in support of objections it may have to granting such petition, shall rule on the petition.”

There is no standard given for the judge to use. Most states define a standard. California uses “in the interest of justice.” Minnesota gets more specific by specifying something like that the benefit to the petitioner and society must outweigh the potential harm to society and the cost of the court.

Without a defined standard, there will be inconsistent rulings and inefficient use of court time.

NOTES

Previous versions had restorative justice elements that required the petitioner to complete community service and finish high school or a high school equivalent if that had not already been completed by the defendant. This bill has no similar provision. While such a provision is not necessary to achieve the basic public policy goals of record clearing laws, the inclusion of some provision that requires community service and/or completion of some education or certification would definitely increase the benefit to society-- and possibly help overcome some opposition to the bill.

This is a good bill that deserves support. It achieves the main goals of criminal record clearing. More soon...