Determining Eligibility for Expungements & Penal Code 17(B) Reductions Expungements and Prop 47 Clinic Training Training Module 1
Think About It What percentage of Americans have a criminal record? What percentage of the world s prisoners are in the U.S.? By what percentage does having a criminal record reduce the chance of a call back for a job interview?
Reality Check Approximately 1 in 4 Americans (65 million) has a criminal record The US has 5% of the world s population and 25% of the world s prisoners. Having a criminal record reduces callbacks by 50% US Bureau of Justice Statistics 2012 and Census estimates 2012
Learning Objectives: 1. Describe how expungements operate to remove legal barriers to employment. 2. Identify and describe the eligibility requirements for expungements. 3. Identify the 3 different types of expungements. 4. Determine when expungements are discretionary and mandatory. 5. Identify 3 step expungement petition process 6. Describe how Penal Code Section 17(B) operates to reduce a felony to a misdemeanor.
Agenda 1. What Can and Can t An Expungement Do 2. Expungement Eligibility Requirements 3. 3 Types of Expungements 4. Mandatory vs. Discretionary Expungements 5. 3 Step Expungement Petition Process 6. Penal Code 17(B) Felony Reductions to Misdemeanors
1. What Can & Can t Expungements Do? Penal Code Section 1203.4
What is an Expungement Expungement = Dismissal- a dismissal sets aside or dismisses some criminal convictions under Penal Code Sections 1203.4, 1203.4(a) and 1203.41.
Benefit and Limitations of a Dismissal What s The Benefit: Main benefit Helps with private sector employment by shielding what some employers are able to find out about a past conviction. What Are Its Limitations: Conviction is not wiped away, sealed, purged or destroyed! Conviction still appears on live scan
A Dismissal Will Not. Will not reinstate the right to possess a firearm, Will not prevent the dismissed conviction from being used as a "prior" if defendant is prosecuted for another offense, Will not prevent the US government from considering the offense for immigration purposes, Will not relieve people required to register as sex offenders of their duty to register, Will not re-instate driving privileges if they have been suspended as a result of the case
Does getting an expungement mean the conviction will entirely go away? A) True B) False Your answer: The correct answer is: Submit Clear
What will the charge look like on a Live Scan report of a person who has had an expungement? A) The charge won t be there. B) The charge will appear but as dismissed. C) The charge won t change at all. Your answer: The correct answer is: Submit Clear
2. Expungement Eligibility Requirements Penal Code Section 1203.4 / 1203.4a / 1203.41 Eligibility General Rule: a) Petitioner Must be Eligible for Expungement b) Conviction Must be Eligible for Expungement
2(a) Eligible Petitioners Rule: In order to be an eligible person for expungement the Petitioner must meet ALL of the following requirements: 1. Not Currently serving a sentence (currently incarcerated, probation, parole) 2. Not Currently Facing Criminal Charges: including traffic tickets and diversion programs
2(b) Eligible Convictions Rule: If eligible for dismissal, the following must be true: 1. Conviction not for the following: Some sexual offenses involving minors. Failure to stop and submit to inspection of equipment or unsafe conditions endangering a person. Juvenile adjudications. Federal convictions. Out of state convictions they must contact attorney in state of conviction 2. Client Did Not Serve any Time in State Prison for Conviction (2 Exceptions)
2 Exceptions to No Prison Time Requirement The following function as a way around the requirement: 1. AB 109 Realignment: If the petitioner was sentenced to serve a state prison sentence in county jail under realignment, then the conviction is still eligible for expungement. 2. Prop 47 Relief: If the petitioner successfully reduces a felony conviction to a misdemeanor via Prop 47, then the petitioner may be eligible for expungement (Prop 47 to be discussed in detail in Training Module 2).
We can assist clients with out of state or federal expungements. A) True B) False Your answer: The correct answer is: Submit Clear
Select which of these offenses are ineligible for expungement. Felony adult conviction that client served A) time in prison for. B) Juvenile adjudications C) Driving Under the Influence (DUIs) D) A and B E) All of the Above Your answer: You answered this correctly! The correct answer is: Submit Clear
If you have a client facing a pending robbery charge, can you expunge a previous drug possession conviction? A) Yes B) No Your answer: The correct answer is: Submit Clear
3. Types of Expungements & Their Effect on Timing of Application The Category of Expungement Effects the Timing of the Application
3 Types of Expungements The following type of expungements effects timing of the application: 1. If probation granted (1203.4) May apply anytime after probation is completed. 2. If probation not granted (1203.4a) Must be misdemeanor or non traffic infraction. May apply one year after date of conviction. 3. If sentenced under AB109 to serve a prison sentence in county jail (1203.41) If jail sentence + mandatory supervision 1 year must pass since completion of sentence before client can apply If jail sentence only 2 years must pass since they finished their sentence before the client can apply.
The client was sentenced to serve a prison sentence in county jail under AB 109. The client was also sentenced to a period of mandatory supervision i.e. parole after being released. How long must have passed since the client completed their period of supervision in order to expunge that conviction? A) 6 months B) 1 year C) 2 years D) 4 years Your answer: You answered this correctly! The correct answer is: Submit Clear
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4. Court s Discretion: Mandatory vs Discretionary Expungement
Is Expungement Mandatory? An individual is entitled to dismissal as a matter of right and evidence of pre/post probation conduct is irrelevant only if the case meets either of the following circumstances: 1. Granted and Completed Probation (1203.4)- If the client was granted probation and the client successfully completed all the terms and conditions of probation. 2. Granted Probation But Discharged Early (1203.4) - If the client was granted probation but was discharged from probation early. 3. No Probation But Served Time/Paid Fine (1203.4(a)) - If the client was only sentenced to serve jail time or pay a fine, then dismissal is mandatory only if the client has lived an honest and upright life since the date of conviction. This means that the client has had no subsequent conviction.
Discretionary Expungements Always Discretionary Cases: Violations of V.C. 12810(a)-(e) (includes DUIs) If client was sentenced under AB109 (PC 1203.41) Handling A Discretionary Case: If dismissal is discretionary, it s suggested that defendant attend hearing and provide supporting documentation: Declaration Letters of support from church, work, etc; and/or 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 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 actions if they have.
A client was charged with a DUI and sentenced to two years of probation as well as fines and fees. The client successfully completed all terms and conditions of probation and paid all fines and fees. Will his conviction be discretionary? A) Yes B) No Your answer: You answered this correctly! The correct answer is: Submit Clear
5. Brief Overview of Expungement Application Process
Petition Forms Los Angeles County uses Judicial Counsel 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-030 (Declaration) Proof Of Service Some counties use their own local forms so check county website Some counties/courts also have their own policies and procedures
3 Step Expungement Application Process 1. Fill out paperwork and Client signs all the following: a) petition; b) fee waiver; and c) declaration. Copy paperwork three times 1) copy for you files 2) copy for the client 3) copy for Proof of Service (remove fee waiver and income info) 2. Serve prosecutor with proof of service. 3. File original petition with clerk. Clerk to stamp copy as proof of receipt.
Which of the following must the client sign? A) Petition and Fee Waiver but not the Declaration. B) Petition and Declaration but not the Fee Waiver. C) Petition only. D) Petition, Fee Waiver, and Declaration. E) None of the above. Your answer: You answered this correctly! The correct answer is: Submit Clear
All counties use judicial council forms? A) True B) False Your answer: You answered this correctly! The You correct must answer the is: question before continuing Submit Clear
6. Penal Code 17(B) Felony Reduction
Penal Code Section 17(b) May petition the court for reduction of a felony to a misdemeanor at the same time as expungement application Rule: If felony is eligible for an expungement + it is a wobbler eligible for 17(b) Wobbler: an offense that can be charged or punished as either a misdemeanor or a felony. BUT Still counts as a strike. Always Discretionary and requires a declaration.
Wobbler vs. Straight Felony 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 Fraud Spousal battery
On June 21, 2008 the Client was convicted of commercial burglary. Under California Penal Code Section 459 - it can either be charged as a misdemeanor or a felony. The Client was convicted of a felony and sentenced to 1 year probation. The Client successfully completed all terms and conditions of probation. Currently, the Client is not involved with the criminal justice system. Is the Client s burglary conviction eligible for dismissal? A) Yes under 1203.4 B) Yes under 1203.4(a) C) No D) Maybe Your answer: You answered this correctly! The correct answer is: Submit Clear
Based on the same client, is the Client s conviction eligible for PC 17(b) Reduction? As a reminder, On June 21, 2008 the Client was convicted of commercial burglary. Under California Penal Code Section 459 - it can either be charged as a misdemeanor or a felony. The Client was convicted of a felony and sentenced to serve 1 year probation. The Client successfully completed all terms and conditions of probation. Currently the Client is not involved with the criminal justice system. A) Yes and it is mandatory. B) Yes, but its discretionary. C) No it is ineligible for reduction. D) Maybe. Your answer: You answered this correctly! The correct answer is: Submit Clear
Based on the same client, can the Court exercise discretion or is dismissal mandatory? As a reminder, On June 21, 2008 the Client was convicted of commercial burglary. Under California Penal Code Section 459 - it can either be charged as a misdemeanor or a felony. The Client was convicted of a felony and sentenced to 1 year of probation. The Client successfully completed all terms and conditions of probation. Currently, the Client is not involved with the criminal justice system. A) Dismissal is Mandatory B) Dismissal is Discretionary Correct - Click anywhere or press Control Y to continue Your answer: Incorrect - Click anywhere or press Control Y to continue You did not answer this You answered this correctly! The You correct question must answer completely the is: question before continuing Submit Clear
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