The first thing that someone who wants to apply for an expungement needs to understand is that if your petition is granted under Penal Code 1203.4, your case is not sealed. A criminal record is not actually "expunged" under this statute. That term implies complete erasure, as if the case had never occurred. A more proper term is "dismissal". The conviction remains on your record for many purposes, including sex offender registration and immigration consequences. What the statute provides is it allows the defendant to be released from all penalties and disabilities resulting from the offense. There are numerous limitations to this relief.
An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute. He or she must not be on probation, or serving a sentence, for any other offense. (Penal Code § 1203.4).
If you were denied probation you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait one year after their conviction before applying for an expungement (Penal Code§1203.4a).
If your criminal case was reduced to an infraction you are eligible for an expungement under Penal Code section 1203.4a.
What are the effects of expungement under PC1203.4/1203.4a?
It Will:
1. Result in a new entry in the court record showing the dismissal of your case;
2. Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;
3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.
4. If the conviction was for a felony, expungement is the first step in obtaining a pardon.
It Will Not:
1. Remove the conviction from your "Rap Sheet" - California and FBI criminal history records will still show the conviction and the later dismissal "per PC 1203.4";
2. Reinstate the right to possess firearms, if it was taken away (reduction to a misdemeanor may accomplish this if the offense is not one of violence);
3. Remove the requirement to register as a sex offender per PC290. If the expungement is granted, registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when eligible. A Certificate of Rehabilitation will relieve specified sex offenders from further registration. This is true for both felony and misdemeanor convictions.
4. Allow you to omit the conviction from applications for government issued licenses;
5. Seal or otherwise remove the court case file from public inspection - anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing);
6. Prevent the conviction from being used as a "prior" or "strike prior" to increase a punishment on a subsequent conviction;
7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;
8. Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.
9. Prevent the conviction from being used by INS for removal and exclusion purposes.
Recently the Law Offices of Justin E. Sterling launched the Clean Slate Project. The program helps individuals in every aspect of post-conviction relief. Visit www.sterlingdefense.com for more information. Also, be sure to "Like" our facebook page at www.facebook.com/cleanslateproject.
Wednesday, October 3, 2012
Tuesday, July 24, 2012
First Annual High School Internship Program
The Los Angeles County Public Defender’s Office is launching their first annual High School Internship program which will run for two weeks, starting July 23, 2012 from 9 am to 3 pm. All students will be assigned to the Clara Shortridge Foltz Criminal Justice Center. They are partnering with the following three high schools and their respective law magnet programs: Dorsey High in the Crenshaw District; Wilson High in El Sereno; and Roosevelt High in Boyle Heights.
The goal is to expose the students to the work that the Public Defender team undertakes in vigorously representing indigent clients, which will include interactive presentations about the role of our supporting team of investigators, paralegals and social workers. The attorneys will also share their own personal stories about the journey that led to becoming deputy public defenders. The students will learn first-hand how the Public Defender promotes justice.
The program will feature a holistic approach to criminal justice, discussing the role of untreated mental illness, substance abuse and early childhood trauma and the connection to the criminal justice system.
The participating students have been in their respective law magnet programs since 9th grade and next year will be applying for college. Some will be the first in their families to attend college. The experience will aim to instill in the students that they too can pursue their dreams of becoming lawyers.
Visit www.sterlingdefense.com for more information. Also, be sure to "Like" our facebook page at http://www.facebook.com/pages/Law-Offices-of-Justin-E-Sterling/302279779793912
The goal is to expose the students to the work that the Public Defender team undertakes in vigorously representing indigent clients, which will include interactive presentations about the role of our supporting team of investigators, paralegals and social workers. The attorneys will also share their own personal stories about the journey that led to becoming deputy public defenders. The students will learn first-hand how the Public Defender promotes justice.
The program will feature a holistic approach to criminal justice, discussing the role of untreated mental illness, substance abuse and early childhood trauma and the connection to the criminal justice system.
The participating students have been in their respective law magnet programs since 9th grade and next year will be applying for college. Some will be the first in their families to attend college. The experience will aim to instill in the students that they too can pursue their dreams of becoming lawyers.
Visit www.sterlingdefense.com for more information. Also, be sure to "Like" our facebook page at http://www.facebook.com/pages/Law-Offices-of-Justin-E-Sterling/302279779793912
State Courts Look To Revise Their Approach To Eyewitness ID
Almost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the “troubling lack of reliability in eyewitness identifications,” it issued instructions on Thursday for judges to give jurors to help them better evaluate such evidence in criminal trials.
A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification.
Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.
And in cases involving cross-racial identifications, judges were directed to tell jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race.”
“You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification,” the instructions say.
The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.
“Human memory is not foolproof,” the instructions say. “Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”
The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.
Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.
The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said.
“These instructions are far more detailed and careful than anything that exists anywhere in the country,” said Brandon L. Garrett, a law professor at the University of Virginia and the author of “Convicting the Innocent,” a book that includes a study of eyewitness misidentifications, which was cited by the New Jersey court in its decision.
“These instructions are far from perfect,” he added, “but they are a remarkable road map for how you explain eyewitness memory to jurors.”
Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, which had filed a friend-of-the-court brief in the New Jersey case, called the changes “critically important” and predicted the new instructions would not only affect how juries are instructed, but would also influence trials themselves and the evidence-gathering that precedes them, since both sides will know that such instructions will be given.
“It changes the way evidence is presented by prosecutors and the way lawyers defend,” he said, adding, “The whole system will improve.”
Stuart J. Rabner, the court’s chief justice, who wrote last year’s decision, said by phone that the ultimate issue of whether to trust eyewitness testimony was for a jury to decide.
“We expect juries are going to hear this evidence, so we want to give them the tools with which to evaluate the eyewitness testimony,” he said.
The State Supreme Court also issued a rule that requires law enforcement officers to record details of how an identification was made. Officers must identify anyone, not just law enforcement personnel, with whom a witness has spoken about the identification — before, during or after it occurred — and include a detailed summary of what was said.
“If the record that is prepared is lacking in important details as to what occurred,” the rule says, a judge may declare the identification inadmissible or allow the jury to hear only portions of it.
Jennifer E. Laurin, an assistant professor of law at the University of Texas, who has written about the politics of criminal justice, said the new instructions are important because jurors will now be “more fully educated about our most contemporary understanding about what makes eyewitness identification more or less reliable.”
A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification.
Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.
And in cases involving cross-racial identifications, judges were directed to tell jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race.”
“You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification,” the instructions say.
The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.
“Human memory is not foolproof,” the instructions say. “Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”
The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.
Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.
The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said.
“These instructions are far more detailed and careful than anything that exists anywhere in the country,” said Brandon L. Garrett, a law professor at the University of Virginia and the author of “Convicting the Innocent,” a book that includes a study of eyewitness misidentifications, which was cited by the New Jersey court in its decision.
“These instructions are far from perfect,” he added, “but they are a remarkable road map for how you explain eyewitness memory to jurors.”
Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, which had filed a friend-of-the-court brief in the New Jersey case, called the changes “critically important” and predicted the new instructions would not only affect how juries are instructed, but would also influence trials themselves and the evidence-gathering that precedes them, since both sides will know that such instructions will be given.
“It changes the way evidence is presented by prosecutors and the way lawyers defend,” he said, adding, “The whole system will improve.”
Stuart J. Rabner, the court’s chief justice, who wrote last year’s decision, said by phone that the ultimate issue of whether to trust eyewitness testimony was for a jury to decide.
“We expect juries are going to hear this evidence, so we want to give them the tools with which to evaluate the eyewitness testimony,” he said.
The State Supreme Court also issued a rule that requires law enforcement officers to record details of how an identification was made. Officers must identify anyone, not just law enforcement personnel, with whom a witness has spoken about the identification — before, during or after it occurred — and include a detailed summary of what was said.
“If the record that is prepared is lacking in important details as to what occurred,” the rule says, a judge may declare the identification inadmissible or allow the jury to hear only portions of it.
Jennifer E. Laurin, an assistant professor of law at the University of Texas, who has written about the politics of criminal justice, said the new instructions are important because jurors will now be “more fully educated about our most contemporary understanding about what makes eyewitness identification more or less reliable.”
Bars To Deferred Action Status
On June 15, 2012, the Obama Administration announced that it would not deport certain undocumented persons who entered the U.S. as children. The Department of Homeland Security (DHS) has offered some initial guidance on the type of criminal offenses that will make a person ineligible to be granted deferred action.
Deferred action means that, even though the individual is undocumented and subject to deportation, the government agrees to defer any actions to remove them.
So, in essence, even though deferred action does not provide a pathway to getting lawful permanent resident status (a greencard) or citizenship, it will allow young people to remain in the U.S. and apply for a work authorization document from the government that entitles them to legally work in the U.S.
This advisory for criminal defense counsel outlines defense strategies to preserve a client’s possible eligibility for deferred action.
Download at: http://www.ilrc.org/files/documents/practice_advisory_for_criminal_defenders_deferred_action.pdf
Deferred action means that, even though the individual is undocumented and subject to deportation, the government agrees to defer any actions to remove them.
So, in essence, even though deferred action does not provide a pathway to getting lawful permanent resident status (a greencard) or citizenship, it will allow young people to remain in the U.S. and apply for a work authorization document from the government that entitles them to legally work in the U.S.
This advisory for criminal defense counsel outlines defense strategies to preserve a client’s possible eligibility for deferred action.
Download at: http://www.ilrc.org/files/documents/practice_advisory_for_criminal_defenders_deferred_action.pdf
Santa Clara County DA Seeks Shorter Three Strikes Law Sentences
District Attorney Jeff Rosen has concluded that more than 60 "three-strikers" from Santa Clara County who are serving life sentences for relatively minor crimes probably didn't deserve such harsh punishment -- and he will seek shorter terms or outright release for at least some of them even if an initiative to scale back California's tough Three Strikes Law loses in November.
Rosen's staunch support of the initiative -- including a provision that would pave the way for judges to easily reduce life sentences for certain three-strikers -- distinguishes him from most of the state's 58 district attorneys. Only two others -- fellow Democrat George Gascon, of San Francisco, and Republican Steve Cooley, of Los Angeles County -- have endorsed Proposition 36.
But Rosen is the only one promising to actively pursue resentencing for some of the lifers who would be eligible if the initiative passes, no matter how the election turns out. Some of those lifers could walk out of prison as soon as the process is complete, if Rosen gets his way.
"We know there are people who were given 25-to-life who would not get that today," Rosen said. "One element of justice is consistency. I want to apply the standard we are using right now. This gives us a way of establishing consistency that is fair while still protecting public safety."
Under the existing Three Strikes Law, the first two strikes have to be violent or serious crimes as defined in the penal code. But only California, out of 24 states with similar laws, allows the third strike to be any felony.
As a result, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen for food, or forging a check for $146 at Nordstrom have been sentenced to life in prison.
In contrast, the new initiative, crafted by a group of Stanford University law professors and the New York-based NAACP Legal Defense Fund, would allow only certain hard-core criminals, including murderers, rapists and child molesters, to be put away for life for any third felony offense, while restricting the third strike to a serious or violent felony for everyone else. A poll conducted this month by the California Business Roundtable and Pepperdine University found 72 percent of likely voters support it.
The initiative also would set up a new procedure to more efficiently bring certain three-strike cases before judges for reconsideration. Right now, such cases can be heard, but obtaining a hearing is far more time-consuming and less certain.
Even though judges retain the ultimate say over whether to reduce a life sentence, a positive recommendation by a top prosecutor like Rosen could play a crucial role in helping three-strikers obtain leniency -- partly because responsibility for the decision would then be shared by the court and the district attorney's office. "It's outstanding that this is his position," said Acting Public Defender Molly O'Neal. "It's absolutely morally and ethically the right thing to do. I'm really impressed."
Rosen's staunch support of the initiative -- including a provision that would pave the way for judges to easily reduce life sentences for certain three-strikers -- distinguishes him from most of the state's 58 district attorneys. Only two others -- fellow Democrat George Gascon, of San Francisco, and Republican Steve Cooley, of Los Angeles County -- have endorsed Proposition 36.
But Rosen is the only one promising to actively pursue resentencing for some of the lifers who would be eligible if the initiative passes, no matter how the election turns out. Some of those lifers could walk out of prison as soon as the process is complete, if Rosen gets his way.
"We know there are people who were given 25-to-life who would not get that today," Rosen said. "One element of justice is consistency. I want to apply the standard we are using right now. This gives us a way of establishing consistency that is fair while still protecting public safety."
Under the existing Three Strikes Law, the first two strikes have to be violent or serious crimes as defined in the penal code. But only California, out of 24 states with similar laws, allows the third strike to be any felony.
As a result, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen for food, or forging a check for $146 at Nordstrom have been sentenced to life in prison.
In contrast, the new initiative, crafted by a group of Stanford University law professors and the New York-based NAACP Legal Defense Fund, would allow only certain hard-core criminals, including murderers, rapists and child molesters, to be put away for life for any third felony offense, while restricting the third strike to a serious or violent felony for everyone else. A poll conducted this month by the California Business Roundtable and Pepperdine University found 72 percent of likely voters support it.
The initiative also would set up a new procedure to more efficiently bring certain three-strike cases before judges for reconsideration. Right now, such cases can be heard, but obtaining a hearing is far more time-consuming and less certain.
Even though judges retain the ultimate say over whether to reduce a life sentence, a positive recommendation by a top prosecutor like Rosen could play a crucial role in helping three-strikers obtain leniency -- partly because responsibility for the decision would then be shared by the court and the district attorney's office. "It's outstanding that this is his position," said Acting Public Defender Molly O'Neal. "It's absolutely morally and ethically the right thing to do. I'm really impressed."
Thursday, May 17, 2012
Defending Gang Cases Seminar
Saturday June 16, 2012 – at The Berkeley Marina DoubleTree Hotel – 200 Marina Blvd, Berkeley, California 94710
Program Coordinators:
Kathleen Cannon, Attorney at Law, San Diego, California
R. Addison Steele II, Deputy Public Defender, Riverside County
R. Addison Steele II, Deputy Public Defender, Riverside County
This Defending Gang Cases Seminar will provide you with 6.0 hours of continuing legal education participatory credits by addressing some very important aspects in the defense of gang cases. We will cover important topics that include trial preparation, humanizing your client, selecting and working with a gang expert, closing argument, discovery issues, and an exhaustive review of the laws and case law pertaining to gangs. Note: We have also reserved a block of lodging rooms at the Berkeley Marina DoubleTree Hotel at a special rate. You can obtain lodging reservations via the Internet, see elsewhere on this notice for the Internet link. If you call to make reservations, be sure to indicate you are attending the CPDA group event to obtain the discounted lodging rate. This program is MCLE accredited – please see box below for details.
PROGRAM SCHEDULE
8:00 a.m. Registration & Check-In
9:00 a.m. Preparing a Gang Case for Trial – Manohar Raju, Deputy Public Defender, San Francisco County
10:00 a.m. Legal Developments in Gang Cases – Charles Denton, Assistant Public Defender, Alameda County
11:00 a.m. Hiring and Working with a Gang Expert – Gregorio Estevane, J.D., Astis Consulting, Los Angeles, California
12:00 p.m. Lunch (included with registration fee)
12:00 p.m. Lunch (included with registration fee)
1:00 p.m. Effective Closing Arguments in a Gang Case – Traci Owens, Deputy Alternate Public Defender, Santa Clara County
2:00 p.m. Discovery Issues and Challenges in Gang Cases – Jason Cox, Attorney at Law, Albany, California
3:00 p.m. Winning by Humanizing the Client in a Gang Case – Souley Diallo, Attorney at Law, Riverside, California
4:00 p.m. Conclusion
This activity is deemed approved for Minimum Continuing Legal Education by the State Bar of California in the amount of 6.0 hours. This CPDA activity conforms to the standards for approved education activities prescribed by the rules & regulations of the State Bar of California governing minimum continuing legal education. This activity is approved for California Legal Specialization Credit as follows: 4.0 hrs in Criminal Law Trial Advocacy and 2.0 hours in Substantive Criminal Law and Procedure. CPDA is an Approved Provider of Criminal Law under section 7.0 of the Rules Governing the State Bar of California Program for Certifying Legal Specialists and the Standards.
Wednesday, May 9, 2012
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