Criminal Record Clearing in a Nutshell

Transcription

1 Criminal Record Clearing in a Nutshell March 2014 Justice Studies Department College of Applied Sciences and Arts CommUniverCity San José State University Record Clearance Project Laws change. Individual cases differ. The material in the presentation is intended to provide general information regarding the law to the public. Do not rely on this information without consulting an attorney regarding your individual, specific situation. Every effort has been made to be sure that this information is accurate at the time of this presentation. Because laws and legal procedures often change, we cannot ensure that this information will be current at the time you use it. March 2014 Adapted from a slideshow by the Stanford Community Law Clinic by Shaun Naidu, Jr. and Margaret Stevenson. An earlier version was developed from materials prepared by the East Bay Community Law Center 1

2 The SJSU Record Clearance Project Community education presentations Basic information regarding the expungement process and the SJSU RCP SJSU Record Clearance Project Speed Screening Individual interviews regarding eligibility for record clearance. Please bring your RAP sheet or other criminal history report. SJSU students work under the supervision of an attorney No Charge 2

3 SJSU Record Clearance Project Next Speed Screening: Tuesday, April 8 3:30 5:30 p.m. Maranatha Christian Center 1811 South Seventh Street, San José Speed Screening Individual review of rap sheets Record Clearing in a Nutshell Presentation on law and process of clearing a criminal record SJSU Record Clearance Project Speed Screening: Friday, May 2 3:30 5:30 p.m. Center for Employment Training 701 Vine, San José Speed Screening Individual review of rap sheets Record Clearing in a Nutshell Presentation on law and process of clearing a criminal record 3

4 Court Petition Preparation RCP has limited capacity to assist people in court. Court hearings for RCP clients: Tuesday, March 3:00 Dept 66, Terraine Courthouse, 115 Terraine, San José Monday, May 3:00 Dept 72, Family Law Courthouse, 170 Park Drive, San José The Public Defender recently began expungement petition preparation at the Reentry Resource Center. 151 W. Mission (corner San Pedro & Mission), San José (408) Monday 9:30 a.m. 11:00 a.m. Tuesday 1:00 p.m. 4:00 p.m. Thursday 1:00 p.m. 4:00 p.m. Friday 9:30 a.m. 11:00 a.m. 7 Criminal records First some background about convictions before discussing how to clear them 4

5 What is a criminal record? A summary of contacts with law enforcement. Also called RAP sheet Record of Arrests and Prosecutions People can get a copy of their own rap sheets at the Sheriff s Office Important: Make sure that there are no warrants pending before going to the Sheriff s Office 9 Criminal records: Types of RAP sheets County County information only Excerpt from county rap sheet 10 5

6 Criminal records: Types of RAP sheets State LiveScan California state information all counties Excerpt from state rap sheet 11 Criminal records: How to get a RAP sheet People can get a copy of their own rap sheets at the Sheriff s Office State ( LiveScan ) All counties $ 45 Arrives in ~ one week County More complete $ 25 Arrives in ~ one month Important: Make sure that there are no warrants pending before going to the Sheriff s Office If no convictions outside Santa Clara County, then best to get county rap sheet 6

7 Criminal records: How to get a RAP sheet For state rap sheet: Go to any LiveScan provider, or Call the Sheriff s office in San Jose at (408) to schedule an appointment or register online at Bring photo ID and $ 45 For Santa Clara County rap sheet: Can drop in to order county record (no appointment t needed) d) Bring photo ID and $ 25 For both state and county rap sheets: Go to the Sheriff s office at 55 Younger Avenue, near the county jail and North First Street 13 Types of convictions Felonies Punishable by o jail or o more than a year in state prison Misdemeanors Punishable by up to a year in county jail or by probation Infractions Lesser offenses where incarceration is not a sentencing alternative Example: many traffic violations 14 7

8 Wobblers A criminal offense that can be charged either as a misdemeanor or as a felony Examples: PC 245 (assault with deadly weapon) PC 487 (grand theft) PC 594 (vandalism) H&S (possession of controlled substance) bt VC (DUI with injury) PC 17(b) 15 Wobblers A judge can reduce a wobbler felony to a misdemeanor at any time. o The judge considers evidence of rehabilitation and the interests of justice Once a felony is reduced to a misdemeanor, it is considered as a misdemeanor for all purposes as if it never was a felony conviction. 16 8

9 AB 109 / Realignment / 1170 Effective January 1, 2014, the new Penal Code section provides: People with a split sentence (released with a tail ; sentenced under PC 1170(h)(B)(5)), can apply for expungement one year after completing supervision. People with straight time (no tail ; sentenced under PC 1170(h)(A)(5)), can apply two years following release from supervision. In all cases, a judge will decide whether dismissing the conviction is in the interests of justice. AB Immigration status There is no immigration status requirement to be eligible ibl to petition for expungement. The RCP helps people without regard to immigration status. The RCP does not give information regarding immigration status to any government agency. 18 9

10 Immigration status The SJSU Record Clearance Project does not offer legal services related to immigration. Therefore, we ask that clients who do not have legal status to consult an attorney who specializes in immigration law before beginning the expungement process. Some agencies that offer immigration legal services: Alexander Community Law Center, San José: (408) Asian Law Alliance, San José: (408) Catholic Charities, San José: 408 (408) Community Legal Services, East Palo Alto: (650) International Institute, Redwood City: (650) SIREN, San José: (408) And various private attorneys Record Clearing Options 10

11 Record clearing options ~ This information applies to California convictions only ~ Expungements = Dismissals of convictions (jail sentences) Certificates of Rehabilitation (prison sentences) Sealing (factual innocence, juvenile, drug diversions) Once file is sealed, no conviction exists; nothing to dismiss. Purging (small amounts of marijuana) After two years, all record of the case should be destroyed automatically. 21 Expungements What does an expungement do? Dismisses a conviction or Withdraws a plea 22 11

12 Expungements The terms of the sentence affect whether a conviction can be dismissed. Sentences of county jail or probation generally can be dismissed Exception: the majority of sex and child pornography offenses are ineligible to be dismissed Sentences to state prison cannot be dismissed (apply instead for a Certificate of Rehabilitation) 23 Expungements: When can I file for expungement? Not serving time Not on probation or parole With no criminal charges pending Note: owing money to the County does NOT bar expungements 24 12

13 Expungements Dismissal of the conviction is either mandatory (required) or discretionary (judge decides at court hearing) What happened after the conviction determines if dismissal is mandatory or discretionary 25 Expungements First, find out if: probation was part of the sentence Example: PC Sentenced to 10 days jail and 1 year probation Note: For record clearances, it does not matter whether probation was formal (reporting) or court (non-reporting). or probation was not part of the sentence Example: Example: PC a Sentenced to 2 days jail. Sentenced to fines and fees

14 Expungements When probation was part of the sentence If the Petitioner successfully completed probation, then the dismissal of the conviction is mandatory (required) Note: Many vehicle code offenses must be heard in court 27 Expungements When probation was part of the sentence If the Petitioner did not successfully complete probation, then the dismissal of the conviction is discretionary (judge decides at court hearing) 28 14

15 Expungements Early termination of probation PC Example: 3 years probation, terminated after 1 year If the Petitioner is granted early termination of probation, then dismissal of the conviction is mandatory (required) 29 Expungements When probation was not part of the sentence If the Petitioner had no further involvement with the criminal justice system during the one year following the conviction, then dismissal of the conviction is mandatory (required) Note: PC a when probation is not a term of sentence does not apply to felonies. For the (rare) felony with no probation, see if it is a wobbler; if so, first reduce to a misdemeanor and then seek to dismiss

16 Expungements When probation was not part of the sentence If the Petitioner had further involvement with the criminal justice system during the one year following the conviction, dismissal is discretionary 31 Expungements When expungement is a matter of discretion, the petitioner must show that the interests of justice support dismissing the conviction

17 Expungements: balance due to County Call Department of Revenue (408) Ask for detailed statement of any balance due to see whether it is fees, fines or restitution An unpaid balance of fees to the County does not bar an otherwise mandatory expungement People v. Bradus (2007) 149 Cal.App.4th 636,638 (successful completion of probation); People v. Holman (2013) 214 Cal.App.4th 1438 (early termination of probation); Lewis v. Clarke (2003) 108 Cal.App.4th 563 (clerk cannot require payment of fee as a condition of filing PC petition) 33 What does not change after an expungement Still counts as a prior Still counts as a strike if it previously counted as a strike Firearm ban remains unchanged Sex offender registration remains unchanged Driver s license suspension remains unchanged 34 17

18 Some benefits of expungements Employment Licensing Student loans Public benefits Housing Foster parenting 35 Expungement: How to apply Apply in the county where the conviction took place File a separate petition for each case number One case may have several counts ( charges ); once the one case is dismissed, all the counts are dismissed 36 18

19 Expungement: How to apply Two paths to get an expungement: filing a form no court appearance fill out application form going to court court appearance required prepare a petition 37 Expungement: How to apply Filing a form (no court appearance) Useful for mandatory dismissals o o When person successfully completed probation If didn t get probation, when person did not have another problem with law enforcement for the year following the conviction 38 19

20 Expungement: How to apply Filing a form (no court appearance) In Santa Clara County: Fill out a short form at go to and type Record Clearance Application in the search box, or call (408) for an application Pay fee to Department of Revenue (for Probation Department s review) o No fee if on public assistance or Public Defender client o one fee covers all cases o o $ 150 for (if have a probation case); $ 60 for a (if have only non-probation case) o RCP may be able to assist with fees 39 Expungement: How to apply Filing a form (no court appearance) In Santa Clara County: About 3 months after submitting form, Probation Department will send a letter stating which convictions have been dismissed Letter will also show which convictions require a court hearing No new fee required if go to court 40 20

21 Expungement: How to apply Other counties (not Santa Clara): California has Judicial Council forms to file for expungements: forms CR-180 & CR ca - drop down menu: criminal 41 Expungement: How to apply Through a court hearing: Useful for discretionary dismissals (court hearing required) when person: Did not successfully complete probation Had new encounter with law within one year of non-probation case Asks the court to reduce a wobbler felony to a misdemeanor 42 21

22 Expungement: How to apply Through a court hearing: Show the interests of justice support tdismissing i i a conviction by: a Declaration (sworn, personal statement), and supporting documents o letters of support from o o co-workers fi friends and dfamily church community volunteer placements certificates of accomplishments other evidence of rehabilitation Judge issues a decision at the hearing 43 Expungements = Dismissals of convictions (jail, probation sentences) Certificates of Rehabilitation Certificates of Rehabilitation (prison sentences) 22

23 Certificates of Rehabilitation When sentenced to prison or conviction ineligible ibl to be expunged (sex offenses), apply for a Certificate of Rehabilitation Certificate of Rehabilitation does not erase or dismiss conviction; it certifies rehabilitation Relieves registration requirement for some sex offenses PC PC Certificates of Rehabilitation: Requirements Residence requirements must have lived in California i for five years immediately before filing, and Time requirements starting with either o last release from last custody or o last encounter with law enforcement, (whichever is later) must have no problems with law for 7 years (for most offenses) o A judge can shorten this time if it is in the interests of justice to do so 23

24 Certificates of Rehabilitation: Procedure File application with court Include supporting statement and documents (similar to filing for discretionary expungements) District Attorney s office does an investigation Judge decides at a hearing

25 For more information, or to sign up for Speed Screening, leave a message for the SJSU Record Clearance Project at expunge@sjsu.edu Or (408) (message line) 25