Expungement & Prop. 47 Clinic Training

The number of Americans incarcerated in federal or state facilities has quintupled over the past 30 years

Racial And Gender Disparity

Criminal Records and Employment More than one-third of all non-working men between the ages of 25 and 54 have criminal records. Between 60 and 75% of formerly incarcerated individuals are still unemployed up to a year after their release. Formerly incarcerated individuals earning $11.04 or more have an 8% likelihood of recidivism, while unemployed individuals have a 23% likelihood. In 2008, criminal records were responsible for an approximate 0.85% drop in the overall employment rate – 1.6% among male unemployed – accounting for around $61 billion in output or more than 0.4% of total GDP.

Road Map Penal Code Section 1203.4 (aka “expungements”) Penal Code Section 17(b), reduction of felonies to misdemeanors Propositions 47 & 64 Reading a RAP sheet or a criminal docket Practice petitions

Expungement Basics

What is an expungement? Expungement = Dismissal – a dismissal “sets aside or dismisses” some criminal convictions under Penal Code Sections 1203.4, 1203.4a, 1203.49, 1203.42 and 1203.41. Does not seal, purge, or destroy the record of the case Expungement only dismisses the specific conviction you are filing a petition for E.g., three convictions: 1) Robbery 2) Burglary 3) Drug possession.

What is the effect of an expungement? Main benefit can help clients obtain private sector employment Limitations: Jobs that require a Live Scan background check, e.g., government jobs, occupational licenses, working with sensitive populations Sex offender registration Immigration consequences Three strikes and prior conviction Reinstating driving privileges Reinstating right to possess a firearm

Expungement Eligibility Requirements Eligibility General Rule: a) Petitioner Must be Eligible for Expungement b) Conviction Must be Eligible for Expungement

Eligible Petitioners Rule: In order to be an eligible person for expungement, the Petitioner must not be currently involved with the criminal justice system. In other words, they are: 1. Not currently serving a sentence (prison, jail, probation, parole) 2. Not currently facing criminal charges: including traffic tickets and diversion programs

Eligible Convictions Rule: In order for the conviction to be eligible, all of the following must be true: Client must not have served time in state prison for the conviction Exception: Prop. 47 Exception: Conviction was prior to 2011 and AB109 eligible Client conviction was not for an ineligible offense Some sexual offenses involving minors Failure to stop and submit to inspection of equipment or for creating an unsafe condition endangering a person Juvenile adjudications Federal convictions Out of state convictions they must contact attorney in state of conviction.

Different Types of Expungements Penal Code Sections 1203.4, 1203.4a, 1203.41, 1203.42 and 1203.49

What are the different types of expungements? If probation granted PC 1203.4 If probation not granted PC 1203.4a Must be a misdemeanor or non-Vehicle Code infraction. May apply one year after date of conviction. If sentenced under AB109 to serve a prison sentence in county jail PC 1203.41 If jail sentence + mandatory supervision 1 year must pass after completion of sentence to apply If jail sentence only two years must pass If sentenced to prison prior to 2011 and conviction is now AB109 eligible1203.42 If conviction was for prostitution and a result of human trafficking PC 1203.49 Must establish with clear and convincing evidence conviction was a result of human trafficking

Discretionary vs. Mandatory Expungements

Is Dismissal Mandatory? An individual is entitled to dismissal as a matter of right only if the following circumstances are met in the case: Under PC 1203.4 (granted probation) successfully completed probation, or discharged from probation early and paid off all of their fines and fees Under 1203.4a (not granted probation + misdo/infraction conviction) If the client “has lived an honest and upright life since the pronouncement of judgement and conformed to and obeyed the laws of the land” Under PC 1203.49

Discretionary Expungements If a case is discretionary , it can be granted “in the court[s] discretion and the interests of justice” Always discretionary Violations of V.C. § 12810(a)-(e), e.g., driving on a suspended license or DUI If client was sentenced under AB109 (PC 1203.41) 1203.42 expungements If discretionary Fill out a declaration for the client Suggest client attaches Letters of support from work, caseworkers, church, etc. 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 the 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 their actions if they have taken responsibility.

Penal Code 17(b) and 17(d)(2) Reductions

Penal Code Section 17(b) Allows client to petition the court to reduce felony to a misdemeanor Rule: if felony is eligible for an expungement + it is a wobbler eligible for 17(b) Wobbler: an offense that can be charged as either a misdemeanor or a felony Always discretionary

How can you tell if it’s a wobbler? 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 Possession of methamphetamines Joyriding

Penal Code Section 17(d)(2) Allows client to reduce certain eligible offenses or “woblettes” from a misdemeanor to an infraction. Applies to special set of eligible misdemeanors, e.g., driving on a suspended license, driving w/o license Ask supervising attorney to review for 17(d)(2) eligible offenses

Hypos Client has three convictions 1) Felony Theft Sentenced to probation and violated. 2) Misdemeanor vandalism Sentenced to six months in jail and fines. Was sentenced 8 months ago. 3) Felony Robbery Served prison sentence in county jail.

Prop. 47 Relief

What is Prop. 47? Prop. 47 reclassified several non-serious, non-violent offenses from felonies, or wobblers, to misdemeanors Similar to 17(b), but does not restore gun rights Benefits Can help with employment Can lead to early release from incarceration or supervision Conviction is probably expungable after reduction Important note: You can have served prison time and still be serving a sentence to be eligible for Prop 47. Explain that expungement eligibility based on 1) what they were sentenced to and whether they are still serving a sentence now Prop 47 depends on the type of offense and what type of offense have you been convicted of in the past.

Prop 47 Application vs. Petition File a Prop. 47 petition to have the court resentence your client when client was already convicted of Prop. 47 offense + still serving sentence for that offense. Relief is discretionary client must not pose an unreasonable risk of danger to public safety, defined as risk of committing “super prior” File a Prop. 47 application to have the court reclassify their felony as a misdemeanor when client was already convicted of Prop. 47 offense + already finished sentence for that offense. Relief is mandatory

Eligible Felonies: Simple Drug Possession Simple Drug Possession– Convictions for the following possession offenses are eligible for Prop. 47 reclassification: Possession of a Controlled Substance under CA H&S Code Section 11350 (includes heroin and cocaine) Possession of Concentrated Cannabis under CA H&S Code Section 11357(a) Possession of Methamphetamine under CA H&S Code Section 11377

Eligible Felonies: Low Level Property Theft Crimes Theft Crimes – Convictions for the following theft offenses are eligible for Prop. 47 reclassification so long as the value of the property was $950 or below: Shoplifting, i.e., commercial burglary of a store during business hours (PC § 459) 
 Forgery if the forged item is listed in PC § 473(b) and client was not convicted for identity theft under PC § 530.5 in same offense (PC §§ 470, 475, 476) Writing bad checks, unless client has 3+ forgery priors (PC § 476a)
 Theft offenses including grand theft (PC § 487) Petty theft with a prior, unless client is required to register as a sex offender or was convicted of fraud or abuse against an elder or dependent adult (PC § 666) Receiving stolen property (PC § 496)

Disqualifying Priors Rule: Having a prior conviction for the following felonies will make you ineligible for Prop. 47: Crimes with Mandatory Registration as a Sex Offender under PC §290(c). “Super Priors” under PC §667(e)(2)(C)(iv) – which include: Sexually violent offenses Homicide: including attempted and solicitation Assault with a machine gun on a peace officer or fire fighter Possession of a weapon of mass destruction Life of death sentence offenses

Application Process

Petition Forms Los Angeles County uses Judicial Council 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-031 (Declaration) Proof of Service Some counties use their own local forms so check county website Some counties/courts also have their own procedures

Expungement Process Fill out paperwork. Client signs 1) petition 2) fee waiver 3) declaration. Copy paperwork three times 1) copy for our files 2) copy for the client 3) copy for Proof of Service. Client will serve prosecutors themselves. Client will file original petition with clerk and have clerk stamp copy as proof of receipt.

Prop. 47 Paperwork Los Angeles uses two forms CRIM 235 petition/application CRIM 237 proof of service Every county has their own Prop. 47 forms

Prop. 47 Process Fill out paperwork. Client signs petition/application. Copy paperwork three times 1) copy for our files 2) copy for the client 3) copy for Proof of Service. Client will serve DA themselves. Client will file original with clerk and have clerk stamp copy as proof of receipt. Talk about how long it could take Tell them fill out parts of proof of service.

Reading a Criminal Docket and RAP Sheet

Now after the initial charging information, the docket will contain a description of every proceeding in the case. As you can see in the red box, each subsequent entry will start off with the date, time, and location of the courtroom, the purpose of the proceeding and the parties in attendance, for example the judge, defense attorney, and prosecuting agency. Here, you can see that the case was arraigned on 7/8/99 at the Central Arraignment Courthouse. You can also see the prosecuting agency in this box. Here the prosecuting agency is the city attorney. Also, as you can see, in the blue box, it has the information on the next proceeding.

The next important set of information is conviction and sentencing. Here you will see a few things. In the first blue box, you see the courthouse the client was convicted. Central arraignment courthouse. This information is important because some of the forms will ask this information, and the client will need to file the expungement in the courthouse they were convicted in. You can also see the date of conviction in this box as well, which is 7/08/99. The date of the conviction is the day that the defendant was sentenced. Here the defendant was sentenced in the red box down below. In the second blue box you will see the prosecuting agency. You will need to know this because the client will have to have a friend or family member serve that agency. If the city attorney was the prosecutor, refer back to the arresting agency to know which city prosecutor to serve. In the yellow box, you will see the disposition of the case. Here, you can see that the client pled guilty. You can also see that the client was only convicted on Count 1 and all other counts were dismissed. At this point you will want to go back to the original charges and see what the client was originally charged with. Here, count 1 was penal code section 242-243(e), which is misdemeanor spousal abuse. If you are unsure what the name of the offense the client was convicted for, quickly look up the penal code section online. Finally, remember to watch out for dropped, added, or modified counts.

Here, the red box indicates that the defendant was sentenced. After that you see that the imposition of sentence was suspended, meaning the court did not impose any sentence, and instead granted the defendant probation. Sometimes the court can impose a sentence, but suspend it’s execution, meaning the person was sentenced to incarceration, but did not actually have to serve that sentence, or sometimes the court can simply sentence the defendant to incarceration. Below that you see that the defendant was placed on summary probation for 24 months. Right after “under the following terms and conditions, you see the terms of probation including the fines that they have to pay, and other probation restrictions.

The final important piece of information is whether the client violated probation. As mentioned previously, if the client violated probation, then the petition is discretionary and requires a decleration. A client only violated probation if a court finds the defendant in violation of probation. Although a revocation alone is not a probation violation, judges are not perfect, and they will often find a probation violation if they see too many revocations of probation. To be safe, if the client has more than one or two revocations, still fill out a declaration. Here the client had his probation revoked. If the client has any more revocations, you will want to think about drafting a decleration.

THANK YOU FROM THE LEGAL AID FOUNDATION OF CONTACT INFORMATION RENE PENA (rpena@lafla.org) THANK YOU FROM THE LEGAL AID FOUNDATION OF LOS ANGELES