New California Criminal Laws: Part Deux

To conclude the series, here’s the fab five we promised last week.

Kids age 15 or younger must talk to a lawyer before the police interrogate them. This is Senate Bill 395. It amended the Welfare and Institutions Code to require that kids consult a lawyer before they waive their Miranda rights. They can do the consultation in person, by phone, or by video, but they can’t waive it even if they want to. If they don’t get one, a court may exclude their statements from evidence at trial (if it gets there). But it may not as well. And there are exceptions for emergencies. The law expires on January 1, 2025.

Kids whose juvenile cases are dismissed or diverted get their records sealed. This is Assembly Bill 529. It amended the Welfare and Institutions Code to seal records from a juvenile case automatically if the case is dismissed or the kid successfully completes a diversion program. It takes these cases and treats them the same as another recent law that applies when kids complete probation.

More kids get a crack at sealing their records. This is Senate Bill 312. It amended the Welfare and Institutions Code to give kids who weren’t even eligible before a chance. It applies if you were found to have committed an especially serious or violent offense when you were at least 14 years old. Now, a court may consider your petition to seal under limited circumstances. It doesn’t apply if you were required to register as a sex offender. And your records can still be looked at by the courts or district attorney if you get in trouble again. For more on sealing juvenile records, see here.

The state continues to implement Prop 57. Remember Prop 57? It required judges to decide whether a kid age 14 or older could be prosecuted in adult court, and it promised a shot at parole for nonviolent offenders who’ve served the bulk of their sentence. But it also aimed to expand the credits an inmate could earn through good conduct or specific rehabilitative programs. Now, the Department of Corrections and Rehabilitation is finalizing its regulations under Prop 57, and you can find more information about them here.

Your Uber, Lyft, or taxi driver can’t have a blood-alcohol level more than .04. This is Assembly Bill 2687, which passed in 2016. It amends the Vehicle Code to apply the lower limit for truckers and other commercial drivers. The law is effective July 1, 2018.

New California Criminal Laws in 2018

We’ve already touched on four of them: Recreational pot. A ban-the-box law for employers. An overhauled sex-offender registry beginning in 2021. New rules for picking juries in civil and criminal cases.

Here are five more this week, with five more to come next week.

Lawyers can advise clients on cannabis. This is Assembly Bill 1159. It amended the Evidence Code to protect attorney-client privilege and confidentiality for legal services rendered in compliance with state and local law. The lawyer must also advise the client on the current conflict under federal law. Lawyers are already advising the cannabis industry, of course. But generally speaking, there’s no attorney-client privilege for legal services that are sought to help someone commit a crime or fraud. It’s the famous crime-fraud exception to the privilege. This law makes clear that, notwithstanding federal law, there’s no crime-fraud exception here just because it’s pot. The law also amended the Civil Code to support commercial cannabis activity that complies with state and local law.

You can seal your arrest record automatically if you weren’t charged or convicted. This is Senate Bill 393. It amended the Penal Code to permit most people who’ve been arrested but not charged or convicted (or whose convictions were overturned on appeal) to seal their arrest record. You may even be entitled to it as a matter of right in many cases; otherwise, you have to show that sealing your record would serve the interests of justice. Before this law, you couldn’t seal an arrest unless you proved your innocence, which is often difficult or impossible even when people did nothing wrong. But the law doesn’t apply if you could still be charged with something, so you must wait until the statute of limitations has run.

You don’t need to plead guilty to get drug treatment for simple possession. This is Assembly Bill 208. It amended the Penal Code to change a type of drug-treatment program we wrote about two weeks ago. The program used to be called deferred entry of judgment; now it’s called pretrial diversion. Before, you had to plead guilty and complete a program that ran 18 months to three years. If you completed the program, your case was dismissed, but if you didn’t, you’d be sentenced on your guilty plea. Now, you can plead not guilty, and the program runs only 12 to 18 months. But you have to waive your right to a jury trial, so if you don’t complete the program, you’ll go before a judge for trial.

The military diversion program includes misdemeanor DUI. Speaking of pretrial diversion, this is Senate Bill 725. It amended the Penal Code to extend a military diversion program to misdemeanor DUIs. This program enables a court to postpone a misdemeanor prosecution and place the defendant in a treatment program in which he may earn a dismissal if he is or was a member of the U.S. military and may be suffering from significant trauma or mental health problems as a result of his service. It wasn’t clear if the program included DUIs; two cases had decided it differently. This law resolves that it does. But it doesn’t guarantee diversion, and it doesn’t stop the DMV from taking your license.

It’s okay to enter a crosswalk during the countdown signal as long as you reach the other side before it ends. This is Assembly Bill 390. Before, you could only enter a crosswalk on a “walk” sign or symbol, and it was a crime (well, an infraction) to do it during the countdown. Who knew? So what if there’s no countdown, but the “don’t walk” sign or symbol is flashing? You’re not supposed to enter the crosswalk.


California’s New Law of Fair Shakes

Whether you’re an employer or an employee, take note.

Earlier this month, California enacted the Fair Chance Act.

This means that, beginning next year, many employers can no longer ask about or look into criminal convictions until they’ve decided a person is right for the job. That means they can’t ask about convictions anymore on a job application. It also means they can’t run a background check until they’ve made a conditional offer of employment.

Also, once employers make a conditional offer and run someone’s record, they can’t deny the job based on a conviction unless they first analyze the relationship between the job and conviction. What kind of job is it, after all? Does it have anything to do with the conviction? How long ago was that, anyway? There must be a “direct and adverse” relationship between the two to justify the decision.

Employers don’t have to share their analysis with applicants, but they must advise of their decision in writing. When they do, they must identify the relevant conviction, attach a copy of the report they ran on the person, and explain that he or she has at least five business days to show why the report isn’t accurate or why they should still get the job based on rehabilitation or mitigating circumstances. Employers must consider any evidence they submit. If they still decide to deny the job, they must let the person know in writing, refer him or her to any existing procedure they have for challenging it, and give them notice of the right to file a complaint with the Department of Fair Employment and Housing.

What hasn’t changed? Employers still can’t consider arrests that didn’t lead to conviction, unless charges are still pending or the arrest was for certain drug or sex offenses and the job is in a healthcare facility that requires access to drugs or patients. Nor can employers consider convictions that have been sealed, dismissed, or otherwise expunged.

The law will apply to employers with five or more employees. It exempts those who must conduct background checks by law. For more on the new law and its passage, see here and here. For the text itself, see here.

California’s New Sex-Offender Registry

Big news out of California last week.

Beginning in 2021, the state will replace its current sex-offender registry, which requires everyone to register for life, with a three-tiered system that distinguishes among low-risk, medium-risk, and high-risk offenders.

People in the first tier will be able to petition to end their registration after ten years. You’re in this tier if you were convicted of a misdemeanor or a non-violent, non-serious felony.

Those in the second tier will be able to petition after twenty years. This applies if you were convicted of a serious or violent offense but do not pose a high risk of reoffending.

Those in the third tier will continue to have to register for life. This applies to high-risk offenders, repeat offenders, and sexually-violent offenders.

For juveniles, there are two tiers. Those in the first tier can petition for removal after five years. Those in the second tier can do so after ten years.

In all cases, the district attorney can oppose your petition, and the court can deny it. If it’s denied, you can petition again, but you’ll have to wait at least one year and as many as five.

Almost everyone supported the new law, including law enforcement, which argued the current registry was so large that cops couldn’t focus effectively on the high-risk offenders.

For local and national press coverage, see here, here, and here.

For the text of the new law, see here.

Two Tears

Two true stories, that is, of people on a sex-offender registry.

The first. Today, she’s a 34-year-old mother of two great kids. Back then, she was a teenager herself when she slept with a boy on the night of her 19th birthday party. The boy was mature enough to pursue her but, as it happened, he was 14. His mom reported her to the police the next day, and they called her in to talk. They told her if she were honest, she wouldn’t go to jail, but it’s funny how that works, because after they filed the case, she was told that she could serve 20 to 25 years if she went to trial and lost. Or she could plead guilty and serve minimal time, but she would have to register as a sex offender.

Today, she’s a good person and a mother of two great kids, but her conviction looks like child molestation on paper, and she must register as a sex offender for life. Recently, she worked to become a staff writer for a local newspaper, but then someone complained about it, and the paper let her go. No one bothered with the details. You should watch her video.

The second. He was a junior in college when he went to Miami for spring break. He met a girl there at an 18-and-over club, and they ended up hooking up. Seven months later, he got a call from law enforcement in Florida. As it happened, the girl had used a fake ID to get into the club. She was actually 15 at the time, and her mom filed a complaint when she found out. So they asked the young man to come to Miami to talk, and he agreed. He told them everything was consensual, and he assumed she was 18 or older since she was in the club. They took his statement, thanked him for his cooperation, and arrested him on the spot.

Five years later, he was homeless because he couldn’t find a job or housing given his lifetime sex-offender registration. Two years ago, almost ten years after his conviction, he failed to register his whereabouts and received three years in prison. You should read his story, too.


Certificates of Rehabilitation in California

A certificate of rehabilitation is a court order that declares your rehabilitation to the world. It also automatically recommends you to the governor for a pardon. If you’re not eligible for an expungement, you can still clean up your record through a certificate of rehabilitation. Or you may want to apply for one even though you’ve already expunged your conviction.

Like an expungement, a certificate of rehabilitation will bring better job prospects and a better chance at getting a professional license. Unlike an expungement, it won’t allow you to say that you have no conviction.

But also, unlike an expungement, a certificate of rehabilitation can relieve you from having to register as a sex offender. The court will deny it, however, if it finds you’re a continuing threat to minors. Or the district attorney’s office can petition to rescind it on that ground.

[Update: Beginning July 1, 2021, a certificate of rehabilitation will no longer end sex-offender registration because of a new law and process for doing so.]

To qualify, you must show that you live “an honest and upright life” and have demonstrated rehabilitation for a number of years after you were released from custody or put on probation or parole. You can’t still be under supervision, and the number of years depends on the nature of your conviction. In a nutshell, it’s nine years if you were convicted of a serious violent crime; ten years if you were convicted of most sex offenses that require sex-offender registration; and seven years for anything else. You also must prove that you’ve lived in California for at least five years before you filed your petition.

Who’s ineligible? Well, you’re not eligible if you don’t meet the above criteria. But you’re also ineligible if you were convicted of a serious sex offense involving a minor. If that’s the case, you can still ask the governor directly for a pardon, but you’ll need to show extraordinary circumstances to get it. Finally, you’re not eligible for a certificate of rehabilitation if you were convicted of a misdemeanor, unless it was a sex offense that required registration.

How do you do it? You can find more information from the governor’s office here, and you can pull the appropriate forms from your local courthouse, public defender, or probation department. The court may even appoint counsel to represent you. Or, if you can afford it, retain counsel to make the best case for you.

Expunging Criminal Records in California

It ain’t just for kids, after all. Anyone who’s eligible can petition to expunge a criminal conviction in California. Here’s what you need to know.

Like we explained last week, the term “expungement” is a misnomer because it doesn’t erase the conviction or wipe the slate clean. But that’s still how lawyers and judges will refer to it. Technically, it’s called a dismissal under Penal Code section 1203.4 or other such section. So you’re still going to have a rap sheet, in other words.

But it will add a line item to your rap sheet that shows the case was dismissed. If you had pleaded guilty before, the court will permit you to withdraw your plea. If you were convicted at trial, the court will set aside that verdict. Either way, the court will then dismiss the case.

In most situations, that means you can legally and truthfully say that you don’t have a conviction. That can help on a job application, for example, though the rule is different for public employers like law-enforcement agencies. In all situations, you can at least say that the conviction was dismissed, because it was.

[Update: Beginning January 1, 2018, many employers will no longer be able to ask about convictions on a job application. But there’s more to it than that, as we explain here.]

Most employers aren’t even supposed to ask about convictions that have been dismissed, and they’re not supposed to rely on them in their decision-making. The exceptions include public employers like law-enforcement agencies.

Most licensing boards, on the other hand, can ask about them, and you should answer by disclosing both the conviction and the dismissal. They’re not supposed to deny a license basely solely on a conviction that has been expunged or dismissed.

You’re eligible to expunge a felony or misdemeanor if you were sentenced to probation or the county jail. If you successfully completed probation or had it terminated early then you are entitled to the dismissal. If you didn’t then you can still win if you can persuade the court of your rehabilitation. If you went to county jail on a felony then you’re eligible one or two years after the end of your sentence; it depends on whether you served a split sentence that included post-release supervision (one year) or a full sentence in jail (two years). Or, if you didn’t get probation on a misdemeanor then you’re eligible if it’s been over a year since you were sentenced, and you’ve completed that sentence and otherwise done well.

You’re not eligible if you were sentenced to state prison, unless you would go to county jail for the same offense today or the court suspended the execution of your prison sentence and put you on probation instead. You’re also not eligible for certain sex offenses involving minors, including child pornography or statutory rape if you were 21 or older and the minor was younger than sixteen.

So how do you do it? Here’s a guide from the official website of the California courts that can help you do it yourself. But you should check your own county’s rules and forms, too. Here’s the link for Orange County, for example. Or, if you can afford it, get a lawyer. He or she will navigate the process for you and help you put your best foot forward. Plus, you may not ever have to go to court yourself.

Expunging Juvenile Records in California

If you spent time in juvie, and you don’t qualify to seal your records, you can still petition to expunge your case.

If the court grants your petition, it will set aside the finding of guilt, dismiss the case, and release you from all penalties resulting from it. That’s what the statute says, anyway.

In reality, an expungement doesn’t erase the past or wipe the slate clean. It won’t seal your records and destroy them. It can’t spare you from registering as a sex offender. And if you pick up another case, the prior can be used against you as a strike or other enhancement.

But it’s still worth it because it reflects your rehabilitation and efforts toward it. Your rap sheet will no longer show a conviction as the last line item for the case. Instead, it will show the case as being dismissed. In most situations, you can legally answer that you don’t have a conviction at all. In all situations, you can at least say that the conviction was dismissed, because it was. That can improve your odds of getting that job, loan, housing, or license.

So it gives you a fresh start.

Sealing Juvenile Records in California

In the case we wrote about last week, a California court held that it wasn’t cruel and unusual punishment to require a minor to register as a sex offender for life.

The court noted, however, that a kid could be relieved of this requirement if he got his juvenile records sealed.

So how do you get your juvenile records sealed? Here are the basics in California.

If you are put on some form of probation or supervision, and you complete it satisfactorily, your records should be sealed automatically. That’s new under a law that went into effect in 2015. You can find more information about it here.

Otherwise, you have to petition the court to seal your records. To do that, you must be at least 18 years old or it must be at least five years since the end of your juvenile case. You can’t have a civil lawsuit pending against you because of the case, and you can’t have any adult criminal convictions except for certain misdemeanors. You must apply through the court’s probation department, and you can check this website to see whom to contact in your county. The court may hold a hearing, and it will grant your petition if it finds that you’ve been rehabilitated. That can happen even if you still owe fines, fees, or restitution. If the court denies your petition, you can try again later.

Generally, you’re not eligible at all if you committed an especially serious or violent offense when you were at least 14 years old. You can read more about that here and here.

But you may have a shot if you can persuade the court to dismiss your case based on a special motion that looks at your rehabilitation, your well-being, and the interests of justice. You may bring this motion no matter how long it’s been since your juvenile case ended, so talk to your lawyer. If you win the dismissal then you can petition to seal your records.

Once the court seals your records, your case no longer exists as a public record, and the proceedings are deemed never to have occurred. That means you can legally and truthfully say that you don’t have a juvenile record. Generally, the underlying records aren’t destroyed until you turn 38 years old, and they won’t ever be destroyed in the serious or violent cases. But they may be looked at only in limited situations, such as if you apply to work in the military, law enforcement, or the federal government.


The Restoration of Rights Project

Have you ever been arrested? Do you have a prior conviction?

Do you wonder whether you can clean up your record and how that affects you, if at all?

Start here. It’s called the Restoration of Rights Project, and it looks at the law in every state for restoring your rights and status after an arrest or conviction. It covers federal law, too.

For each state, the Project compiles answers to these questions:

  1. Whether and how you can seal, expunge, or dismiss your arrest or conviction.
  2. Whether and how you can restore your civil rights, like the right to vote.
  3. Whether and how your state’s laws affect your chance of landing a job or license, losing one, or getting it back.
  4. Whether your state has a regular process to apply for a pardon and how often it grants one.
  5. Whether and how you can stop having to register as a sex offender.

It’s a great resource not just for lawyers and the courts but for, in its words, “the millions of Americans with a criminal record who are seeking to put their past behind them.”

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