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Penal Code section 1203.4 expungment

 

Penal Code section 1203.4 once provided significant relief from the collateral consequences of a criminal conviction, back when it was first enacted. But the relief it once provided has been significantly eroded over the years by two broad factors. The first broad factor is the general decrease in collateral consequences, such as the inability to vote. The other broad factor has been more significant. Ever since PC 1203.4 was enacted, there have been an increase in exceptions to 1203.4 relief amended into the statute itself, and found by caselaw and erected by other subsequently passed statutes. I believe it is time for the legislature to take a fresh look at 1203.4.The primary relief PC 1203.4 provides today is that the ex-convict can say that he or she once was convicted, but after successful completion of probation, the court vacated the conviction and dismissed the case. Perhaps the person can tell a purely private entity that the person was not convicted, but no case so-holds. I derive this possibility from the requirement in PC 1203.4 that the person must disclose the conviction in certain specific other contexts.My speculation about what a person can tell a private employer is impacted by Cal. Code Regs. tit. 2 ” 7287.4, subdivision (d). This regulation prohibits most private employers from asking a person about a misdemeanor that has been dismissed under PC 1203.4. It strengthens my speculation as to misdemeanors, but weakens it as to felonies.My speculation about what a person can tell a private employer is also impacted by Prop 36. When a person has a Prop 36 conviction “dismissed”under PC 1210.1, subdivision (d), then, under (d)(3), the person “may indicate [whatever that phrase means] in response to any question … that he or she was not arrested or convicted for the offense.” PC 1203.4 contains no such provision. Lianna, and anybody else counseling a person who wants further education,should take note that a college is not an employer, and so is not governed by the above regulation. Take note also of the possible differences between a state school, such as UCLA, and a private school, such as USC. I do not know what regulations may govern what private and public schools can ask of 1203.4 convictions. Likewise, most professions governed by the Business and Professions Code can consider convictions dismissed under PC 1203.4. See, e.g., Business and Professions Code sections 475, 480 and 490. Teachers governed by Education Code sections 44009 and 87009 can see their “dismissed” convictions considered. A dismissal under PC 1203.4 does not seal or expunge the conviction. It remains on the books and available to the general public, with an additional entry of the PC 1203.4 “relief.” PC 1203.4. See, e.g., People v. Sharman(1971) 17 Cal.App.3d 550, 552. In the Internet age, these “dismissed”convictions are increasingly easy to discover.(Note, that a dismissal under Prop 36 also does not seal or expunge anything. If SB 223 passes as amended on July 16, 2001, then a P36 dismissal will, for some but certainly not for all, purposes, mean that “…both the arrest and the conviction shall be deemed never to have occurred.” Still, because P36 will not contain any sealing or expunging language, the effect of this “deem[ing]” remains uncertain.) Note also that PC 1203.4 contains no provision such as the one contained in Prop 36. Under Prop 36, PC 1210.1, subdivision (d)(3), with some exceptions, “a record pertaining to a [dismissed P36 case] may not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.” While that language in P36 probably binds a public entity (such as a public college), it may not have any effect on a purely private entity (such as a private college). I normally counsel people that if they are answering the question to an entity that they believe might make a background check, that they should answer the question by saying something like “yes but the court later vacated the conviction and dismissed the case.” I also tell them that they answer the question “no” at their peril

 

Charges dismissed against Alexander Sorto

The charges were dismissed in the West Justice Center against my client Alexander Sorto. The court heard my motion to suppress evidence pursuant to Penal Code section 1538.5. The court ruled the observation and statements of two Costa Mesa Police officers would be suppressed due to a violation of my client’s Constitutional right to be free from illegal seizures and searches. The Orange County District Attorney’s Office announced they “were unable to proceed” as a result of the court’s ruling. That resulted in the dismissal of a charge of battery on a police officer [Penal Code section 243b] and three counts of delaying or resisting a police officer [Penal Code section 148a]. Read the story here: http://www.ocweekly.com/news/ocda-tried-to-block-dash-cam-video-absolving-man-of-charges-he-assaulted-costa-mesa-cop-7317262

Charges Dismissed against Alex Sorto

My client, Alex Sorto had his charges dismissed after the Orange County District Attorney’s Office told the judge that they “were unable to proceed” after the judge suppressed the observations of two Costa Mesa Police Officers who arrested him on charges of battery on a police officer [Penal Code section 243d] and three charges of resisting or delaying a police officer [Penal Code section 148a]. http://www.latimes.com/socal/daily-pilot/news/tn-dpt-me-sorto-charges-20160707-story.html

Mr. Sorto was present at the Dippity Donuts when a friend was assaulted by another patron. Mr. Sorto wisely left the scene of the assault for his own safety. Unfortunately he was contacted and assaulted by Costa Mesa Police officers who tackled and used a Taser on him for no reason. Fortunately there were video and audio recordings that demonstrated what actually happened.

People v. Sorto case is dismissed

Case dismissed was the reult of a case I just finished the criminal case of the People v. Sorto case in the West Justice Center which was dismissed.  My client was falsely charged with Battery on a Police Officer and 3 counts of interfering with 3 Costa Mesa Police Officers.  The case was sent out for trial. Prior to the commencement of trial and motion to suppress illegally seized evidence was heard by Judge Kreber-Varipapa in W17.  One might hope that with the current scandal with informants and discovery that the OCDA’s Office would be training their new DA’s extensively on discovery and other basics. As we started the motion it became apparent the assigned prosecutor knew virtually NOTHING about criminal law. According to her, neither observations nor statements could be suppressed in a 1538.5 motion. She still didn’t get it after the judge disabused her of that notion. The motion involved 4 officers who testified in the hearing. She proceeded to discuss the facts and reports with several of the cops with no investigator present. After the officers testified they had discussed the case and their reports with her, I demanded she produce written reports citing Roland v. Sup.Crt. She stated she was an officer of the court and she knew her discovery obligations. Of course she had never heard of it. After reading it she said it was a defense case and didn’t apply to the DA. One of the officers wrote NO report so she also discussed what he witnessed. She brought in case law on Brady saying that controlled her discovery obligations, and there was nothing inconsistent with their reports, so nothing to disclose, I read 1054.7 regarding witness statements and she still didn’t get it. Finally the court ordered her to provide a written statement to me. ALL of her cops lied on the witness stand, which of course made her a witness to perjury as they had reaffirmed their false police reports with her when she was interviewing them before and during the hearing. When the last of the 4 cops was testifying, I pulled out a DVAR video obtained in discovery which impeached all of the officers, she said “I object, I have never seen that before.” She then tried to keep out the DVAR on foundational grounds. When that didn’t work, she argued that the court should believe the lying police officers and not the video that showed they were all lying. If that is the training they are getting after the revelations of Dekraai, we should all continue to be outraged. The court granted the motion in part, which resulted in the OCDA’s Office stating “they were unable to proceed” which resulted in the dismissal of the case.

Presumptive Drug Tests

Presumptive Drug Tests

Orange County Criminal defense attorneys should be aware of the problems of these presumptive tests.  They are not reliable and should not be used as evidence to prove a defendant’s guilt.  An actual certified forensic lab test of any suspected contraband substance must be required before anyone’s guilt is established beyond a reasonable doubt.  When representing clients, I always demand a “real” analysis before determining what strategy to use in defending my clients.  Don’t settle for anything short of that level of proof.

http://www.ocregister.com/articles/test-701837-drug-false.html

Orange County residents BEWARE

All Orange County criminal defense attorneys should be aware that local police agencies in Orange County are illegally seizing information from your cellphones. Apparently there are a number of devices that various Police Departments are using to remotely search and seize information from your cellphones. BEWARE

http://www.ocregister.com/articles/devices-702724-cellphone-dirtbox.html

CALIFORNIA’S PRISON CROWDING

The Ninth Circuit Federal Court has ordered a reduction in California’s prison population.  There are specific guidelines as to how and in what amount prisoner’s sentences shall be reduced.  The Prison Law Office has complied a written explanation of these guidelines.  Please click on the link below.

http://prisonlaw.com/wp-content/uploads/2015/09/pop-reduction-credit-laws-info-letter-September-2015-final.pdf

Student attacked in Ontario

This is the type of case wherein if a suspect is arrested and convicted, the prosecution would be asking the perpetrator be required to register as a sex-offender.  That is because the attacker allegedly tried to remove the young girl’s clothes.  If a defendant is convicted and ordered to register pursuant to Penal Code section 290, that is a lifetime registration requirement.

http://www.latimes.com/local/lanow/la-me-ln-teen-girl-attacked-ontario-20160120-story.html

Conviction reversed due to improper jury instructions

The most common reason a conviction is overturned is due to improper jury instructions.  The conviction was reversed because the court gave a special instruction requested by the prosecution that created a presumption that improperly shifted the burden to the defendant to prove he was not guilty.  This was reversed because the instruction should have been drafted as an “inference” rather than a rebuttable presumption.

http://www.latimes.com/local/lanow/la-me-ln-alarcon-conviction-overturned-20160120-story.html

The latest on Orange County District Attorney Tony Rackauckas

If this article is true, it shows just how long the corruption of the Orange County District Attorney’s Office has been going on.  This is a case prosecuted by Tony Rackauckas when he was a homicide prosecutor.  It demonstrates the then and now thought process of the Orange County District Attorney’s Office and how they fail to comply with the most basic Constitutional Rights of citizens charged with crimes.  They will use any means possible to convict a suspect who they believe is guilty.  They will use the most unreliable informants who become reliable because they will produce evidence out of thin air that becomes credible because it proves the prosecution’s theory of the case.  In other words, it is the most basic circular argument possible.  If it proves my theory it is correct because it proves my theory.  Then they hide the information that proves their snitch is a liar and unreliable.  It disappears like magic.  Since they are the only ones with the information, it is almost impossible to catch their deception.  Fortunately, Senior Public Defender Scott Sanders persevered and uncovered this information.

http://www.ocweekly.com/news/new-mysteries-mount-in-old-murder-case-solved-by-da-tony-rackauckas-6825774