DISMISSAL OF CONVICTION
If an individual has been convicted or pled guilty to an offense in a negotiated settlement, our work is still not over. We work closely with our clients to help them continue with their rehabilitation and to fulfill the terms and conditions of probation. Additionally, we are frequently retained to seek the dismissal of your conviction and have your case expunged from your records if you have complied with the terms of probation, even if the entire period of probation is not completed. We are your top San Diego Expungement Attorneys and here to help you.
EXPUNGEMENT
AM I ELIGIBLE FOR AN EXPUNGEMENT?
An adult who was granted and has successfully completed probation, either by fulfilling the conditions of probation or being successfully discharged before the end of his/her probationary period, may be eligible to clear his or her criminal record. It is not necessary that the TERM of Probation be completed to obtain this relief. Hence, your probation may be for 5 years, however, if you have successfully fulfilled all of the terms and conditions except the period of time and have had no intervening criminal cases, you may be eligible for having the guilty plea withdrawn and the conviction dismissed. You are not eligible for a dismissal if your conviction is for a violation of Vehicle Code section 42001(b) or Penal Code sections 286(c), 288, 288a(c), 288.5, 289(j) or any felony conviction of Penal Code section 261.5(d). We are your personal and experienced San Diego Expungement Attorneys.
How does an Expungement of a criminal record help?
- It will result in the dismissal of your criminal case ;
- It will permit you to answer "NO" on employment applications that inquire if you have any prior convictions. On the other hand, if you are applying for a state professional or vocational license, government employment or one in which there will likely be a background investigation, they will likely discover the conviction; therefore, you should disclose the conviction and that it has been expunged or dismissed (some prefer attaching a certified copy of the court order). Also, the conviction or underlying facts if the conviction is dismissed may be used to refuse or revoke a state license and/or permit, such as a professional license issued to a doctor, attorney, nurse, dentist, real estate sales broker/agent, security officer, teaching credential, bus drivers license, etc. However, at Samuel Spital & Associates we handle state administrative cases and will use a variety of factors, including the expungement, to reduce the weight given the conviction by the licensing agency.
- If the conviction was for a felony, it must first be reduced to a misdemeanor . If the felony conviction does not include jail and/or a grant of probation, there probably was imposed a term in state prison; in those cases, the relief that is available is a Certificate of Rehabilitation and Pardon, or Direct Application to the Governor for a Pardon.
PARDON
A Certificate of Rehabilitation is a court order, which declares that you have been convicted of a felony or qualified misdemeanor and are rehabilitated. If a Petition for a Certificate of Rehabilitation is granted, it is forwarded to the Governor by the Superior Court and constitutes an application for a pardon.
A Certificate of Rehabilitation is available to individuals if:
- You were sentenced to State Prison and were released on Parole (thereby being ineligible for expungement);
- You have a felony conviction and desire a Governor's Pardon
- You have a misdemeanor conviction and are required to register pursuant to PC 290.
How does a Certificate of Rehabilitation help?
- Once granted it becomes an automatic application for a Governor's pardon
- State licensing agencies will take into account the Certificate when deciding to grant or deny a state license (Doctor, Dentist, Nurse, Real Estate Broker or Agent, Contractor, etc.)
- It relieves certain offenders from registration requirements of PC 290.
Am I eligible for a Certificate of Rehabilitation?
If you have a felony conviction or a misdemeanor conviction that requires registration pursuant to Penal Code section 290 that has been expunged; have continuously lived in California for 3 to 5 years prior to applying for a Certificate of Rehabilitation and Pardon (Residency requirement is 3 years if released on parole, all other cases 5 year residency is required); and present a satisfactory period of rehabilitation which begins from the date you were released from custody, you qualify for this relief. A change of residence within Californiadoes not interrupt the period of rehabilitation.
The period of rehabilitation begins upon your discharge from custody due to your completion of the term to which you were sentenced OR upon your release on parole or probation, whichever is sooner. The period of rehabilitation shall be five years' residence in California plus a period of time determined by the following rules:
(1) To the five years there is added four years for anyone convicted of violating PC Section 187, 209, 219, 4500 or 12310, or subdivision (a) of Section 1672 of the Military and Veterans Code, or of committing any other offense which carries a life sentence.
(2) To the five years there is added five more years for anyone convicted of committing any offense or attempted offense for which sex offender registration is required per PC 290, except for convictions for violations of subdivision (b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or 314. For those convictions, two years shall be added to the five years imposed by this section.
(3) To the five years there is added two years for anyone convicted of committing any offense that is not listed in paragraph (1) or paragraph (2) and that does not carry a life sentence.
(4) The trial court hearing the application for the Certificate of Rehabilitation may, if you were ordered to serve consecutive sentences, order that your statutory period of rehabilitation be extended for an additional period of time, but when combined does not exceed the period prescribed by statute for the sum of the maximum penalties for all of the crimes.
(5) Any person who was discharged after completion of his or her term or was released on parole before May 13, 1943, is not subject to the periods of rehabilitation set forth in these rules.
Unless and until the period of rehabilitation, as set forth above, has passed, you are ineligible to file a petition for a Certificate of Rehabilitation with the court.
While these are highly desirable goals and we recommend you employ Samuel Spital & Associates to file a Petition to obtain this relief, the dismissal does not remove the arrest from your California "CII or Rap Sheet" nor from FBI criminal history records (PC 1203.4); moreover, it does not reinstate your previous right to possess firearms (although having the felony reduced to a misdemeanor may restore some rights under California law, federal law probably effects a lifetime prohibition for possession of a firearm; also, it does not seal or remove the court case file from public inspection - anyone who knows where to look will be able to find the court case file (however, probation reports are in confidential files and are not subject to public inspection 90 days after sentencing);and, a dismissal does not prevent the conviction from being used for impeachment purposes if you are later called as a witness, nor from being used as a "prior" to increase the punishment if you are subsequently charged in a criminal case; lastly, the conviction can still be used by INS for removal and exclusion purposes.
FACTUAL INNOCENCE
How can an Arrest Record be Destroyed?
1. As your criminal defense lawyer, we are ready to file a Petition for Factual Innocence if you were wrongfully arrested and no charges were filed . California Penal Code section 851.8 provides that "the arrest shall be deemed not to have occurred ..." if the Court grants the Petition. Also, the Police or Sheriff responsible for the arrest must issue a declaration stating you are factually innocent .
The challenge that exists in the situation where no charges have been filed is that the prosecutor has one (1) year to file misdemeanor charges and three (3) years to file charges for most felonies. The question that arises, therefore, is when to file the Petition for Factual Innocence? If you retain one of the skilled criminal defense lawyers at Spital and Associates we will evaluate your situation, strategize and determine whether there is "good cause" to obtain this relief prior to the period of time the prosecution can file its complaint.
The Order determining Factual Innocence is is far better than an acquittal. In the situations when a case goes to trial and the defendant is acquitted, it only means the District Attorney or prosecutor did not meet its "burden of proof," which means he/she failed to produce evidence of guilt beyond a reasonable doubt. Therefore, in an acquittal there still remains the innuendo that the defendant may still have committed the crime. The opposite is true in a decision granting the Petition for Factual Innocense.
The result is that the records are sealed for three years from the date of the arrest and no one will have access to any records that would otherwise reveal the arrest; this includes both current and prospective employers, schools, licensing agencies, credit burseaus, insurance companies, and cases involving adoption and child custody. We are not rendering an opinion, however, regarding disclosure of a prior arrest on one's application for a position as a law enforcement officer. After the three years have elapsed, all records relating to the arrest as well as the Petition for Factual Innocence and court file are destroyed; this includes the California Department of Justice, local police and sheriff's department as well as the FBI.
2. As your criminal defense lawyer, we are ready to file a Petition for Factual Innocence if you were wrongfully arrested and charges were filed but there is a dismissal or acquittal. There is no waiting period and the Petition can be filed immediately (There only is a 10 day period in which Notice to the prosecutor and law enforcement department is required)
3. There is a two year statute of limitations within which one must file the Petition for Factual Innocence. There is legal authority to have the time limit waived in those situaqtions where the case has dragged on in court for two or more years.
Samuel Spital & Associates
8880 Rio San Diego Drive
Suite 800
San Diego, Ca. 92108-1642
Telephone: 619-583-0350
E-mail
Banker's Hill Associate's Office
Of Counsel - Russell Babcock, Esq.
1901 First Avenue, Suite 138
San Diego, Ca. 92101
Downtown Associate's Office
Of Counsel - Bill O'Connell, Esq.
110 West C Street, Suite 1300
San Diego, Ca. 92101-3978
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