Expungement, Prop. 47 & Prop. 64 Clinic Training
Road Map Relevant Facts Penal Code Section 1203.4 (aka expungements ) Penal Code Section 17(b), reduction of felonies to misdemeanors Proposition 47 Prop 64 Reading a RAP sheet or a criminal docket Practice petitions
Who has contact with the criminal justice system? Approximately 1 in 4 Americans (65 million) has a criminal record. In 2011, about 7 million adults were under some form of correctional control, about 1 in every 35 adults in the United States. (This includes probation, jail, prison, parole.) One in about 108 adults is incarcerated. Since 1970, our prison population has risen 700%. Source: US Bureau of Justice Statistics 2012 and Census estimates 2012
Racial and Gender Disparity
Criminal Records and Employment Studies have consistently shown that employment reduces the likelihood of recidivism. 1 However, many employers are reluctant to hire applicants with criminal records. A criminal record can reduce the likelihood of a callback or job offer by nearly 50 percent. 2 More than 80 percent of U.S. employers perform criminal background checks on prospective employees. 3 Between 60 and 75 percent of people with records are jobless up to a year after release. 4 1. Nally, J., et al., Post-Release Recidivism and Employment among Different Types of Released Offenders, International Journal of Criminal Justice Sciences (IJCJS), 2014. Vol. 9 (1): 16 34. 2. Pager, D., and B. Western, "Investigating Prisoner Reentry: The Impact of Conviction Status on the Employment Prospects of Young Men" (pdf, 136 pages), Washington, D.C.: U.S. Department of Justice, National Institute of Justice, October 2009, NCJ 228584. 3. Burke, M.E., 2004 Reference and Background Checking Survey Report: A Study by the Society for Human Resource Management, Alexandria, Va.: Society for Human Resource Management, 2006. 4. Petersilia, J., When Prisoners Come Home: Parole and Prisoner Reentry. Chicago, Ill.: University of Chicago Press, 2003; Travis, J., But They All Come Back: Facing the Challenges of Prisoner Reentry, Washington D.C.: Urban Institute Press, 2005.
Distinct Remedies EXPUNGEMENTS 1203.4 1203.4a 1203.41 1203.49 REDUCTIONS 17(b) 17(d)(2) 1170.18 (Prop. 47) H&S 11361.8 (Prop. 64)
Expungement Basics
What is an expungement? Expungement = Dismissal A dismissal sets aside or dismisses some criminal convictions under Penal Code Sections 1203.4, 1203.4a, 1203.49, and 1203.41. Does not seal, purge, or destroy the record of the case Expungement only dismisses the specific conviction you are filing a petition for
What is the effect of an expungement? Main benefit can help clients obtain private sector employment Modifies what government employers see on background checks Improves likelihood of obtaining a professional license. Can assist with government funded housing applications Limitations: Jobs that require a Live Scan background check, e.g., government jobs, occupational licenses, working with sensitive populations Sex offender registration Immigration consequences Three strikes and prior conviction Reinstating driving privileges Reinstating right to possess a firearm
Expungement Eligibility Requirements Eligibility General Rule: a) Petitioner Must be Eligible for Expungement b) Conviction Must be Eligible for Expungement
Eligible Petitioners Rule: In order to be an eligible person for expungement, the Petitioner must not be currently involved with the criminal justice system. In other words, they are: 1. Not currently serving a sentence (prison, jail, probation, parole) 2. Not currently facing criminal charges: including traffic tickets and diversion programs
Eligible Convictions Rule: In order for the conviction to be eligible, all of the following must be true: Client must not have served time in state prison for the conviction Exception: Prop. 47 and Prop 64 Client conviction was not for an ineligible offense Some sexual offenses involving minors Failure to stop and submit to inspection of equipment or for creating an unsafe condition endangering a person Juvenile adjudications Federal convictions Out of state convictions they must contact attorney in state of conviction.
Different Types of Expungements Penal Code Sections 1203.4, 1203.4a, 1203.41, and 1203.49
What are the different types of expungements? If probation granted PC 1203.4 If probation not granted PC 1203.4a Must be a misdemeanor or non-vehicle Code infraction. May apply one year after date of conviction. If sentenced under AB109 to serve a prison sentence in county jail PC 1203.41 If jail sentence + mandatory supervision 1 year must pass after completion of sentence to apply If jail sentence only two years must pass If conviction was for prostitution and a result of human trafficking PC 1203.49 Must establish with clear and convincing evidence conviction was a result of human trafficking
Probation Probation Probation Sentences w/ Probation Summary probation: also known as informal probation. Generally for misdemeanor convictions Formal probation: for felony convictions Note: Probation can include any sentence of these sentences Sentences w/o Probation Jail time Fines/fees Restitution Community Service CalTrans Other court ordered programs
Discretionary vs. Mandatory Expungements
Is Dismissal Mandatory? An individual is entitled to dismissal as a matter of right only if the following circumstances are met in the case: 1. Under PC 1203.4 (granted probation) a) successfully completed probation, or b) discharged from probation early c) and paid off all of their fines and fees 2. Under 1203.4a (not granted probation + misdo/infraction conviction) a) If the client has lived an honest and upright life since the pronouncement of judgement and conformed to and obeyed the laws of the land 3. Under PC 1203.49
Discretionary Expungements If a case is discretionary, it can be granted in the court[s] discretion and the interests of justice Always discretionary Violations of V.C. 12810(a)-(e), e.g., driving on a suspended license or DUI If client was sentenced under AB109 (PC 1203.41) If discretionary Fill out a declaration for the client Suggest client attaches Letters of support from work, caseworkers, church, etc. Diplomas/Certificates
Best Practices for Declarations Make sure to include any of the following in your client s case Circumstances surrounding the conviction, e.g., drug abuse issues or mental health issues. Positive improvements since the conviction, e.g., school, therapy, community involvement. Reason client is seeking relief, e.g., family or difficulty finding employment. Statement that client has taken responsibility for their actions if they have taken responsibility.
Penal Code 17(b) and 17(d)(2) Reductions
Penal Code Section 17(b) Allows client to petition the court to reduce felony to a misdemeanor Rule: if felony is eligible for an expungement + it is a wobbler eligible for 17(b) Wobbler: an offense that can be charged as either a misdemeanor or a felony Always discretionary
How can you tell if it s a wobbler? Wobbler language is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years. Straight felony language defendant shall receive an additional term in the state prison.
Common Wobblers Theft crimes Assault Possession of methamphetamines Joyriding
Penal Code Section 17(d)(2) Allows client to reduce certain eligible offenses or woblettes from a misdemeanor to an infraction. Applies to special set of eligible misdemeanors, e.g., driving on a suspended license, driving w/o license Ask supervising attorney to review for 17(d)(2) eligible offenses
Hypos Client has three convictions 1) Felony Theft Sentenced to probation and violated. 2) Misdemeanor vandalism Sentenced to six months in jail and fines. Was sentenced 8 months ago. 3) Felony Robbery Served prison sentence in county jail.
Prop. 47 Relief
What is Prop. 47? Prop. 47 reclassified several non-serious, non-violent offenses from felonies, or wobblers, to misdemeanors Similar to 17(b), but does not restore gun rights Benefits Can help with employment Can lead to early release from incarceration or supervision Conviction is probably expungable after reduction
Prop 47 Application vs. Petition 1. File a Prop. 47 petition to have the court resentence your client when client was already convicted of Prop. 47 offense + still serving sentence for that offense. a) Relief is discretionary client must not pose an unreasonable risk of danger to public safety, defined as risk of committing super prior 2. File a Prop. 47 application to have the court reclassify their felony as a misdemeanor when client was already convicted of Prop. 47 offense + already finished sentence for that offense. a) Relief is mandatory
Eligible Felonies: Simple Drug Possession Simple Drug Possession Convictions for the following possession offenses are eligible for Prop. 47 reclassification: 1. Possession of a Controlled Substance under CA H&S Code Section 11350 (includes heroin and cocaine) 2. Possession of Concentrated Cannabis under CA H&S Code Section 11357(a) 3. Possession of Methamphetamine under CA H&S Code Section 11377
Eligible Felonies: Low Level Property Theft Crimes Theft Crimes Convictions for the following theft offenses are eligible for Prop. 47 reclassification so long as the value of the property was $950 or below: 1. Shoplifting, i.e., commercial burglary of a store during business hours (PC 459) 2. Forgery if the forged item is listed in PC 473(b) and client was not convicted for identity theft under PC 530.5 in same offense (PC 470, 475, 476) 3. Writing bad checks, unless client has 3+ forgery priors (PC 476a) 4. Theft offenses including grand theft (PC 487) 5. Petty theft with a prior, unless client is required to register as a sex offender or was convicted of fraud or abuse against an elder or dependent adult (PC 666) 6. Receiving stolen property (PC 496)
Disqualifying Priors Rule: Having a prior conviction for the following felonies will make you ineligible for Prop. 47: 1. Crimes with Mandatory Registration as a Sex Offender under PC 290(c). 2. Super Priors under PC 667(e)(2)(C)(iv) which include: a. Sexually violent offenses b. Homicide: including attempted and solicitation c. Assault with a machine gun on a peace officer or fire fighter d. Possession of a weapon of mass destruction e. Life of death sentence offenses
Prop. 64 Relief The Adult Use of Marijuana Act 2016
What is Prop. 64? Prop. 64 reduces most felony and misdemeanor penalties for marijuana offenses specifically, Health and Safety Code Section 11357, 11358, 11359, and 11360 are all amended by the measure. Benefits Can help with employment Can lead to early release from incarceration or supervision Conviction is probably expungable after reduction
Application Process
Petition Forms Los Angeles County uses Judicial Council forms CR-180 Petition for Dismissal CR-181 Order for Dismissal FW-001 (Request to Waive Court Fees) FW-003 (Order on Court Fee Waiver) MC-031 (Declaration) Proof of Service Some counties use their own local forms so check county website Some counties/courts also have their own procedures
Prop. 47 Paperwork Los Angeles uses two forms CRIM 235 petition/application CRIM 237 proof of service Every county has their own Prop. 47 forms
Prop 64 Paperwork Los Angeles County uses CR-187 for petition/application and proof of service.
Reading a Criminal Docket and RAP Sheet