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...

RecordGone.com Passes Nation's Biggest Firms

According to Alexa.com, the law firm of Higbee & Associates’ flagship web site, www.RecordGone.com, now generates more traffic than the web sites of seven of the ten largest law firms in the United States.

While the web traffic is not how most law firms measure their success, it is a statistic that Mathew Higbee, the founder of HIgbee & Associates, is happy to see. “They may have 200 times more attorneys on their payroll than we do, but more people rely on our web site for legal advice and information,” said. Higbee.

LAW FIRM - ALEXA RATING

RecordGone.com - 174,495

TOP TEN LAW FIRMS
1. Baker & McKenzie - 129,276
2. DLA Piper Rudnick Gray Cary - 154,749
3. Jones Day - 223,398
4. White & Case - 277,902
5. Lathan & Wadkins - 325,860
6. Skadden, Arps, Slate, Meagher & Flom - 223,428
7. Sidley Austin Brown & Wood - 440,435
8. Greenberg Traurig - 168,592
9. Mayer Brown, Rowe & Maw - 261,936
10. Morgan, Lewis & Bockius - 352,453