PDA

View Full Version : Question for the CA law guys..??


Trendkill
01-20-2010, 4:47 PM
I work occasionally with a gentleman that got a Felony charge like 300 years ago for growing weed. He has had an absolute clean record since then...and quite honestly...in my opinion....he shouldnt have got a felony if his story is legit.

He expressed to me how frustrating it is to move on in his life with getting decent jobs etc etc etc...not to mention the fact that his hands are tied in respect to having some sort of Self Defense firearm.

My question is:

Are there ways to get something like this removed from your record...and if so...what Lawyer('s) ...(Name Please)...would be able to help this guy...???


Thanks

ke6guj
01-20-2010, 4:50 PM
Are there ways to get something like this removed from your record...and if so...

possibly. Depending on the crime, and the punishment, there is a process where the felony is dropped down to a misdemeanor, and the plea can be withdrawn.

gbp
01-20-2010, 4:53 PM
if i were you i would not even think of posting this here
you will get 5 thousand responses from people that really have "No Clue".
this will turn into a 10 page thread with no usefull advice.
hire an attorney
JM$0.02

Calm Down
01-20-2010, 4:57 PM
Although the past cannot be completely erased, some relief from the disadvantages of a
criminal conviction is available. Penal Code Section 1203.4 permits defendants,
previously convicted of a felony or misdemeanor, who have successfully completed
probation or have been discharged early, to have their case dismissed.
Penal Code Section 1203.4a provides similar relief to persons convicted of a
misdemeanor and not placed on probation.
If the petition is granted, the person must be released from all Apenalties and disabilities@
resulting from the conviction. Perhaps the most significant benefit applies to future
applications for employment in the private sector. By regulation, a private employer
cannot ask a job applicant about any misdemeanor dismissed under Penal Code 1203.4.
(Cal.Code Regs 7287.4(d).
However, the limitations on relief available under PC 1203.4 are numerous and
substantial.
Generally, persons convicted (by plea or trial) of a felony or misdemeanor who were
placed on probation and who successfully completed probation and who are not presently
charged with any new offense, are eligible.
A. Automatic Entitlement.
If the person successfully completed probation (or had his or her probation
terminated early), and is not then serving a sentence, on probation, or charged
with any new offense, relief must be granted. People v. Hawley (1991) 228
Cal.App.3d 247, 249.
But, relief need not be granted when probation expired without successful
completion. People v. Covington (2000) 82 Cal.App.4th 1263 (failure to make
full restitution).
-2-
B. Discretionary Entitlement
If a person cannot be said to have Afulfilled the conditions of probation for the
entire period of probation@ (e.g., suffered another conviction while on probation),
they do not automatically qualify for Penal Code 1203.4 relief.
Relief may still be available, but it is more difficult to obtain. In such instances,
Penal Code 1203.4 authorizes the court to grant the requested relief at its
discretion and in the interests of justice.
From a practical perspective, this means that a person who is not automatically
entitled to dismissal, will likely want and need to include evidence of
rehabilitation or other good deeds, e.g., certificates, letters of recommendation,
etc., and/or be able to advance a compelling reason for the request, e.g., to avoid
losing a job.
One judge, in commenting on the standard he applies in case involving
discretionary applications succinctly stated his view that the legislature
contemplated evidence that the person “has turned their life around.”
1. Persons Convicted of a Misdemeanor and Not Granted Probation
Penal Code 1203.4a provides relief similar to dismissal under Penal Code
1203.4 to persons convicted of a misdemeanor and not placed on
probation.
Relief is available under this section at any time after the lapse of one year
from the date of sentencing, provided the person (i) fully complied with
and performed the sentence of the court, (ii) is not presently serving a
sentence, (iii) is not presently charged with any crime, and (iv) has, since
being sentenced, Alived an honest and upright life.@
C. Ineligible Persons and Offenses
1. Persons convicted of a felony and sentenced to prison: If you were
convicted of a felony and sentenced to prison (either initially or after
having had your probation violated), you are not eligible for relief under
Penal Code 1203.4.
2. Many sex related offenses: Penal Code 1203.4 relief is not available for
violations of Penal Code 286(c), 288, 288a(c), 288.5, 289(j), or any felony
conviction for a violation of 261.5(d).
-3-
3. Traffic Violations: Penal Code 1203.4 relief is not available for
misdemeanor violations of California Vehicle Code 2800, 2801, and 2803.
III. What are the Limitations, i.e., what doesn’t it do?
A. Effect on Future Criminal Conduct
A dismissed charge may still be pled and proved just like any other prior conviction
in a subsequent prosecution. This means a prior DUI conviction will remain
available for ten years to enhance the penalty for any subsequent DUI offense. See
also People v. Diaz (1996) 41 Cal.App.4th 1424 (dismissed charge used as strike
under Three Strikes law).
B. Required Disclosures
A person who secures Penal Code 1203.4 relief must still disclose the conviction in
response to any direct question contained in any questionnaire or application for
public office or licensure by any state or local agency, or for contracting with the
state lottery.
C. Possession of Firearms
o Dismissal of a Complaint or Information, i.e., an accusatory pleading, does not
restore the right of disqualified persons to own or possess a firearm, or prevent a
person’s conviction under Penal Code 12021 (ex-felon in possession of a firearm
& possession of firearms by persons convicted of certain misdemeanors).
o Special Note on Misdemeanor Convictions: A felony conviction represents a
permanent bar to owning or possessing a firearm. However, it is important to also
note that numerous misdemeanor offenses carry a ten (10) year prohibition
against owning, purchasing, receiving and/or possessing a firearm. Penal Code
12021(c)(1) identifies these misdemeanor offenses which include such crimes as
assault, battery, and spousal battery. As with ex-felon in possession, a violation of
this section may be prosecuted as a felony. See Penal Code 12021(c)(1).
o Penal Code 1203.4 relief likewise does not restore or accelerate a person’s right
to own or possess firearms after a disqualifying misdemeanor conviction.
D. Registration as a Sex Offender under Penal Code 290
Dismissal does not relieve the person of any obligation to register under Penal
Code 290 as a convicted sex offender.
E. Other Limitations
• Dismissal does not make the conviction records unavailable to the public.
People v. Field (1995) 31 Cal.App.4th 1778, 1787 - Sealing Arrest Records.
See Penal Code § 851.8.
• Dismissal does not prevent state licensing agencies from using the conviction
in their licensing decisions. See e.g., Business & Professions Code 475, 480,
490; Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 885.
• Dismissal does not prevent a conviction from disqualifying an individual from
obtaining a foster car license under Health & Safety Code 1522(g). See
Department of Children & Family Services v. Sup. Ct. (Cheryl M.) (2003) 112
Cal.App.4th 509.
IV. When Am I Eligible?
A. For a misdemeanor or felony, if placed on probation: You are eligible upon
completion of probation. (Remember, you must have successfully completed
probation to be automatically entitled to the grant of relief under Penal Code
1203.4, and cannot presently be on probation, serving any sentence, or charged
with any new offense).
• Early Termination of Probation: Eligibility occurs upon completion of the
probationary term. Usually this will mean after three years; however, it
can be earlier if the court grants a motion for early termination of
probation.
• Practical Hint: Ordinarily, you must have a very good and special reason
to persuade the court to terminate probation early. Most judges are going
to start from the point of view that everyone would like to be off probation
early, and will want to know what makes your situation special.
B. For a misdemeanor, if not placed on probation: You are eligible one year after
pronouncement of judgment, i.e., sentencing, provided you have fully complied
with the sentence, not serving any new sentence, not charged with any new
offense, and lived an honest and upright life since sentencing.
V. How much does it cost?
Penal Code 1203.4 allows the court to assess a fee of up to one hundred and twenty
dollars ($120), for the actual cost of county services relating to a petition to dismiss, if
authorized by the county board of supervisors. The county board of supervisors has
authorized assessment of the $120. Kern County Code 4.32.030.
Assessment of a fee is likewise authorized by Kern County Local Rule of Court 5.3.4,
which provides, in part, “The moving party shall be required to pay any fees charged by
the Probation Department for such review.”
However, note, the fee can only be assessed upon determination by the court of the
defendant’s ability to pay. Lewis v. Clarke (2003) 108 Cal.App.4th 563, 573. As a
result, the court clerk cannot charge the amount as a filing fee.
The bottom line is that if you cannot afford $120, you should not let this discourage you
from seeking dismissal under Penal Code 1203.4. Instead, you may ask the court to
waive the fee, and/or request a hearing as to your ability to pay if the court expresses its
intent to assess the $120 fee.
VI. What is the procedure?
• Time Requirements: A motion under Penal Code 1203.4 requires fifteen days notice
to the prosecuting attorney. See Penal Code 1203.4(d).
• Service Requirements: The District Attorney must be served, and the Probation
Department is also ordinarily served with a copy of the motion.
• Form of Request: The judicial council has prepared a form which may be used for
seeking relief under Penal Code 1203.4. Alternatively, a formal motion may be used
and appears to be required in instances involving discretionary relief, i.e., when the
applicant cannot be said to have successfully completed probation.
• Reduction of Offense from Felony to Misdemeanor: For felony offenses which are
“wobblers” (punishable either as a felony or misdemeanor), it is common in the
motion to first ask the court to reduce the offense to a misdemeanor under Penal Code
17(b).
Penal Code 17(b) states that once declared a misdemeanor, the crime is a
misdemeanor “for all purposes.” Again, there are a number of exceptions. For
instance, if the felony represents a ”Strike” under the Three Strikes Law.
(1997) 14 Cal.4th 968.

Unit74
01-20-2010, 4:58 PM
It can be expunged with the assistance of an attorney most likely.

Trendkill
01-20-2010, 5:39 PM
if i were you i would not even think of posting this here
you will get 5 thousand responses from people that really have "No Clue".
this will turn into a 10 page thread with no usefull advice.
hire an attorney
JM$0.02

I can filter....and part of my question was asking for referals to attorneys in this field....so thanks for the tip.

Surf&Skeet
01-20-2010, 10:17 PM
I can filter....and part of my question was asking for referals to attorneys in this field....so thanks for the tip.

Trendkill, I would suggest having your friend talk to Joe Silvoso, a lawyer with Michel & Associates (Chuck Michel's firm). I don't know his direct line, but the firm's number is (562) 216-4444. He has answered a few of my questions in the past and those of people I know. He will probably be able to tell you or your friend whether he has a chance of ever owning a gun in about two minutes and for free likely. If there is a chance of getting his rights back, Joe is probably the guy he will want to handle his case anyways (Joe or someone from Chuck's office). Worth a shot at least.

Trendkill
01-20-2010, 10:54 PM
Trendkill, I would suggest having your friend talk to Joe Silvoso, a lawyer with Michel & Associates (Chuck Michel's firm). I don't know his direct line, but the firm's number is (562) 216-4444. He has answered a few of my questions in the past and those of people I know. He will probably be able to tell you or your friend whether he has a chance of ever owning a gun in about two minutes and for free likely. If there is a chance of getting his rights back, Joe is probably the guy he will want to handle his case anyways (Joe or someone from Chuck's office). Worth a shot at least.


Thankyou....I will forward your info to my Co-worker.