Before You Submit Your License Application Or Report Your Conviction -- You May Be Eligible To Have Certain Felony Violations Designated As Misdemeanors Under Penal Code 1170.18 (Prop. 47)

If you have been convicted of certain felonies and are eligible under the recently passed Proposition 47 which enacted Penal Code Section 1170.18, you may be eligible to have the felony designated as a misdemeanor and/or resentenced as a misdemeanor.  

Here are some frequently asked questions our office is receiving:

Who Should Seek Relief Under Penal Code Section 1170.18 (Prop. 47)?
My recommendation is that anyone who is eligible should seek relief. Felony convictions can result in negative collateral consequences for future student loans, SBA loans, job opportunities, background checks for jobs, clearance for coaching kids' sports or volunteering, admission to colleges, and licensing by governmental agencies, among other things. Reducing to a misdemeanor will at least make some of these exclusions "discretionary" instead of mandatory.  

When Should I Seek Relief Under Penal Code Section 1170.18 (Prop. 47)?
I recommend doing it now. The statute provides that relief should be sought within 3 years of the enactment of the statute or later for good cause. You do not know what you could be doing in 3 years or how this can effect your future. Do not put it off and do it now.  

How Can Penal Code Section 1170.18 (Prop. 47) Affect A Licensing Board's Determination on Discipline?
If a felony is reduced to a misdemeanor, then the disciplinary guidelines will be more favorable to a misdemeanor conviction. With Section 1170.18, this gives individuals convicted of certain felonies the opportunity to reduce it to a misdemeanor.  In addition, this can be used to help show rehabilitation and mitigating evidence.  

Some felonies known as "wobblers" can be reduced to a misdemeanor under Penal Code Section 17(b) but that reduction is discretionary with the court. This new statute gives individuals convicted of felonies another avenue.

Who Is Eligible?
Anyone who has been convicted of the following  California state crimes (not federal) and meets the eligibility criteria:

Health and Safety Code Section 11350 [Possession of a controlled substance] 
Health and Safety Code Section 11357(a) [Possession of a concen. cannibis] 
Health and Safety Code Section 11377(a) [Possession of methamphetamine] 
Penal Code Section 459 [Second Degree Burglary] or Section 459.5
Penal Code Section 473 [Forgery]
Penal Code Section 476a [Bad Checks/Fraud]
Penal Code Section 496 [Receiving Stolen Property] 
Penal Code Sections 484/666 [Felony of Petty Theft With a Prior/Shoplifting]

For theft charges to be reduced, the amount at issue must have been less than $950.

Also the court will not change your charges from felonies to misdemeanors if you have certain strike priors, or if you are required to register pursuant to Penal Code Section 290(c). 
  
What Will Be The Effect of Having The Petition Granted? 
A re-designation means that the conviction is now deemed a misdemeanor for all purposes, except that re-designation does not permit the defendant to own, possess, or have in their custody or control, any firearm or prevent their conviction under Chapter 2 (commencing with Penal Code Section 29800 felon with a gun) of Division 9 of Title 4 of Part 6.  

What Does The Court Consider And Will Be The Effect of Having The Petition Granted? 
If the person is eligible under Section 1170.18(f), the court shall grant the petition.  Section (f) eligibility is where the felony conviction, whether by trial or plea, would have been a misdemeanor under this act had Section 1170.18 been in effect at the time of the offense. No hearing is necessary to grant or deny an application filed under subsection (f) but a hearing can be requested.

For other offenses, where there are no disqualifies present under Penal Code Section 1170.18(b)(1)-(3) and (i), a re-designation will be granted unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. In exercising its discretion, the court may consider all of the following:

(1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes.

(2) The petitioner's disciplinary record and record of rehabilitation while incarcerated.

(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

"Unreasonable risk of danger to public safety" means an unreasonable risk that the defendant will commit a new violent felony within the meaning of Penal Code Section 667(e)(2)(C)(iv).

How Long Does This Process Take?  
The petition process may take between 15 to 60 days, depending on the details of the case and the amount of time it takes to prepare the petition.

Our office is handling these matters and contacting clients to make sure they take advantage of this new law.  If you want your case evaluated, feel free to call or email our office for a complimentary 15 minutes consultation.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Email: tgreen@greenassoc.com
Call:    213-233-2260

How to Clean Up Your Conviction - Expunging Calfornia State Criminal Convictions

BACKGROUND ABOUT EXPUNGEMENT 

Expungement is a method for cleaning up your state criminal record. There is no expungement for federal convictions. This procedure reopens your criminal case, dismisses the conviction, and re-closes the case without a conviction. In effect, you are no longer a convicted person. However, the case record itself will still exist, and the expungement will appear on your record. 

It is important to understand that it does not "seal" your records. Moreover, if you had a juvenile conviction, you need to file a petition to seal that conviction since it is not sealed automatically.

We represent our clients in this process but for those who want to understand it further or cannot afford representation, this guide will be helpful. If you have had a misdemeanor conviction such as a DUI, petty theft or any other minor conviction it is still necessary to go through this process to get the conviction off your record no matter how many years ago. If you had a felony case, you may also want to have it reduced to a misdemeanor first and then have it expunged. 

Since most misdemeanor and felony cases in California are eligible, this is an important process for people to follow up on after they have completed probation and do not have any open cases. It is an important part of moving ahead with one's life and can also help with job opportunities and future licensing in professions.  We often represent individuals who failed to clear up past records and assist them, but it is important to realize that this does not happen automatically when probation ends. Moreover, with wobbler offenses which can be reduced to misdemeanors upon completion of probation, that is also not automatic in most cases. It is therefore important to do this follow up work and many people put it off for years until they suddenly realize it is holding them back.  

Not all convictions can be dismissed. Expungement is limited to cases in which the defendant was sentenced to county jail time, probation, a fine, or a combination of those three. Additionally, the Penal Codes permitting expungment of criminal records expressly prohibit certain types of convictions from being dismissed. Most of these exceptions involve serious vehicle code violations (those that result in two or more points on your driving record) or sexual offenses against minors. For a detailed list of exceptions see Penal Code § 1203.4 and Penal Code § 1203.4a.

THERE ARE 3 TYPES OF EXPUNGEMENT: 

1.      The first, governed by Penal Code § 1203.4, will expunge cases in which probation was part of the sentence. 

2.      The second, under Penal Code § 1203.4a, will expunge cases in which there was no probation. 

3.      The third, under Penal Code § 17, will reduce a felony conviction to a misdemeanor. This misdemeanor can then be dismissed. Felonies meeting the criteria under Penal Code § 17 are often called "wobblers," meaning they could be charged as either a felony or misdemeanor.

If you received state prison as your sentence, you will need to file paperwork for a Certificate of Rehabilitation, rather than a Petition and Order for Dismissal.  More information is available from the California Department of Corrections and Rehabilitation at http://www.cdcr.ca.gov/BOPH/docs/apply_for_pardon.pdf

WHAT DOES AN EXPUNGEMENT NOT DO FOR YOU?

Although your conviction may be dismissed, restrictions resulting from the conviction cannot. An expungement does not: 

o   Remove the conviction from your criminal history. California and FBI criminal history records will still show the conviction and the subsequent dismissal.

o   Seal the court case file from public inspection. The court file remains public record.

o   Reinstate your right to possess firearms. In some cases, reduction of a non-violent felony to a misdemeanor may accomplish this. 

o   Relieve you of your duty to register as a sex offender. In some cases, this may be accomplished by a different motion to the court.

o   Allow you to omit the conviction from applications for government-issued licenses. You must disclose your conviction and expungement in your license application.

o   Allow you to omit the conviction from application for government employment.  If you are applying for a government job, a job that requires security clearance, or a job that requires a government-issued license, certificate, or permit, you must disclose the conviction and expungement.

o   Allow you to hold public office, if the conviction prevented you from doing so.

o   Prevent the conviction from being used to refuse or revoke a government license or permit, such as real estate license, teaching credential, security guard certificate, etc. 

o   Prevent the conviction from being used as a "prior." The dismissed conviction can be used for determining sentencing enhancements in subsequent convictions.

o   Prevent the conviction from being used by the DMV. Expunged convictions may be used to suspend or revoke driving privileges. 

o   Prevent the conviction from being used by US Citizenship and Immigration Services. In many situations, an expunged conviction may be considered for removal or exclusion purposes. 

Frequently Asked Questions: Should I Expunge My Conviction If I Am A Licensed Professional Or Want To Apply For A State License? What Is Expungement? Can I Get A Felony Reduced To A Misdemeanor?

Here is the second in a series of posts on frequently asked questions regarding misdemeanor and state felony convictions, expungements of those convictions and how expungements can affect licensed professionals during California Board or Bureau proceedings. This post will also assist other professionals and persons for whom a state conviction would affect their employment opportunities.

Question 2: What is an expungement?

Answer 2:  In California, the law regarding expungements is governed by Penal Code Section 1203.4 and 1203.4a.  An expungement reopens your criminal case, dismisses and sets aside the conviction or plea (of guilty or no contest), and re-closes the case without a conviction. In effect, you are no longer a convicted person. However, the case record itself will still exist, and the expungement will appear on your record.  There are three types of expungements:

(1)  Penal Code 1203.4 allows the court to expunge cases in which probation was part of the sentence. For example, straight probation cases or those with probation and county jail. The court must grant these expungements if you are not on probation, have completed all terms of your probation (including restitution and fines) and do not have a current crimnal case.

(2) Penal Code 1203.4a  allows the court to exercise its discretion and expunge cases in which there was no probation. In these cases, it is important to submit a declaration with setting forth your rehabilitation, the reasons you want expungement, and other relevant information. We often represent clients in these type of expungements where the court has discretion to deny the expungement.

(3) Penal Code 17 allows the court to reduce certain felony conviction to a misdemeanor. The misdemeanor can then be dismissed or expunged.  If you received state prison as your sentence, you are not eligible for a reduction to a misdemeanor. You will need to file paperwork for a Certificate of Rehabilitation instead.

This will be addressed in a subsequent post but if you had a felony conviction it it is important to have the conviction reduced to a misdemeanor before it is expunged. In determining whether to enter into a plea agreement, having a "wobbler" felony which can later be reduced to a misdemeanor is often a key negotiating point.

An expungement does not seal or destroy a client's criminal record, but it allows the client to state to a private employer (not to government or state licensing agencies or to certain  publicly funded employers like the lottery) that he or she has not been convicted of a crime.  Expungement of a client's record helps increase the likelihood that the client will be able to obtain employment and shows increase his or her family's financial stability.

Question 3: I am going to apply for a license (law, medical, nursing, real estate, etc.) and I had a criminal conviction in my past.  Should I have it expunged before I begin  the application or license renewal process or will it make any difference?

Answer 3:  Yes. Have it expunged since the expungement can be used as mitigating evidence by the Board or Bureau. As noted in my prior post on this topic (Do I Need To Disclose Convictions That Have Benn Expunged In Professional License Or Government Applications?), the expungement does not relieve you of the requirement to report the expunged conviction but is useful in order to obtain a license or obtain a lesser amount of discipline.   

I recommend that everyone have their convictions expunged since it also allows you to answer "no" to the question of whether you have ever been convicted of a felony or misdemeanor in any job application. However, remember that many employers conduct background checks and the conviction will still show up in background checks along with the expungement.

Question 4: Once my conviction is expunged, can I answer "No" to questions about convictions on job applications?

Answer 4: Legally, you may answer "No" to these types of questions. Keep in mind, though, that background checks typically go back 10 years, and employers can see that you had a conviction dismissed.

I have had calls from frustrated job applicants realizing they were losing employment opportunities after the background checks. Thus, if you know it is a large company that will run a background check, you may decide that answering "No" could look dishonest. A better response for some employers may be "Yes in 2005, but case dismissed and expungement granted in 2009."You could also attach a letter of explanation to explain the circumstances and how you have turned your life around and what you learned from that experience.

If you are applying for a government job, a job that requires security clearance, or a job that requires a government-issued license, certificate or permit, the conviction will be discovered during the standard background check. You should disclose the conviction and expungement in these situations.

If you are applying for a government-issued license, certificate, or permit, you must disclose your conviction and expungement.

As I noted in a prior post, the California Boards and Bureaus have gotten a lot tougher over the past five years and failure to invest adequate time and effort into this process (including proper expunegment and reduction to a misdemeanor) can cost someone a lot of lost income due to delay or denial of licensing. Spending $1,000 to $5,000 in putting together a mitigation and expungement package and explanation can often save clients hundreds of thousands of dollars over a few years.  It is in investment that is often well spent. 

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.  

Any questions or comments  should be directed to Tracy Green, an experienced California board, administrative and licensing attorney with more than 25 years' experience at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed professionals in California and throughout the country. Their website is: http://www.greenassoc.com/

Do I Need To Disclose Convictions That Have Been Expunged In Professional License Or Government Applications?

Here is a series of posts on frequently asked questions regarding misdemeanor and state felony convictions, expungements of those convictions and how expungements can affect licensed professionals during California Board or Bureau proceedings.

Question 1: I am going to apply for a license (law, medical, nursing, real estate, etc.) and I had a criminal conviction in my past but it was expunged.  Do I need to disclose it?

Answer to Question 1:  The short answer is "YES." The failure to disclose expunged convictions gets more applicants into trouble with Boards and Bureaus (and results in probably as many denials of licenses) than the disclosing of the conviction does since it allows the Board or Bureau to deny your application on the ground that you "made a false statement" on your application.  The hallmark of professionalism is honesty so if they see you any false statement, it is a huge problem and claiming you did not understand that you had to disclose the expunged conviction is not persuasive after the fact.

In fact, it is not only "expunged" convictions you will probably have to disclose but also other kinds of arrests that resulted in diversion or deferred entry of judgment.  It is necessary to read the application carefully and the definition of "conviction."

And long answer is that "Yes, you disclose but you want to disclose it in the best manner possible." A well written statement of explanation and mitigation package submitted to the Board or Bureau can make a huge difference in how your application is treated.

Remember, an expungement does not:

• Remove the conviction from your criminal history. California and FBI criminal history records will still show the conviction and the subsequent dismissal. Thus, when the agency does a background check it will come up.
  
• Allow you to omit the conviction from applications for government-issued licenses.
• Prevent the conviction from being used to refuse or revoke a government license or permit, such as real estate license, teaching credential, security guard certificate, etc. 
• Seal the court case file from public inspection. The court file remains public record.

I am often hired to help physicians, lawyers, nurses and other professionals submit written explanations and packages of prior convictions. It is often necessary where my clients speak English as a second language and also do not understand culturally how to present this type of information in the best light possible. You need to take full responsibility for your actions, be accurate and honest and at the same time explain how something like this will not ever happen again.

It is better if I am involved from the beginning but often I get hired after the application has been denied and we need to file an appeal. The old saw that "good beginnings make good endings" applies here and even educated clients need an objective person to know how to write for the Board or Bureau.

There is usually some aspect of shame, embarrassment or emotion involved (especially when the conviction is old or was unfair) that can cause the applicant to not take it as seriously as it should. Or it is assumed that because the conviction is over 10 years' old, it will not be used to deny a license or application.

The California Boards and Bureaus have gotten a lot tougher over the past five years and failure to invest adequate time and effort into this process can cost someone a lot of lost income due to delay or denial of licensing. Spending $1,000 to $5,000 in putting together a mitigation package and explanation can often save clients hundreds of thousands of dollars over a few years.  It is in investment that is often well spent. 

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. 

Any questions or comments  should be directed to Tracy Green, an experienced California board attorney, administrative attorney, and California licensing attorney with more than 20 years' experience. 

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed professionals in California and throughout the country. Their website is: http://www.greenassoc.com/