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If you or a loved one has been convicted of a Domestic Violence case and need or want an expungement give our office a call.  Many peopple wonder if a domestic violence case is somehow exempt fromt he expungement statutes they are not. 

In this article I will go over the Misdemeanor Domestic Violence elements and then what an expungement is and how you can get one and what are the effects of an expungement but first I will go over the firearms rights and how the expungement will not get your firearm rights back.  

DOES AN EXPUNGEMENT FOR A DOMESTIC VIOLENCE OFFENSE RESTORE MY FIREARM RIGHTS?

The answer to this question is no and I will explain.  Federal Law has changed recently to exclude those who committed domestic violence cases from owning or possessing firearms.  

THE DIFFERENCE BETWEEN FEDERAL AND STATE LAW

In state law someone that has committed a violent Misdemeanor or  domestic violence offense has a 10 year  ban on owning or purchasing or posssessing a firearm.   After that period has run out then the person can again lawfully own possess a firearm.

 

HOWEVER UNDER FEDERAL LAW 

for Domestic Violence cases only the right to own or buy a firearm is not restored after that 10 year period has elapsed.  That means under Federal Law when you go to buy a firearm you will not be able to and the application will be denied.  This does not change even if you get an expungement on a domestic violence case.   Many people falsely believe and even some Attorneys advertise that a expungement somehow erases your record this is not true. 

 

WHAT IS A DOMESTIC VIOLENCE MISDEMEANOR 

In another blog post I will go over a Felony Domestic Violence offense and how to reduce that offense to a Misdemenaor.  

1. Defendant willfully inflicted corporeal injury on a spouse

2. victim was either:

defendant's spouse or former spouse

person with whom he or she was cohabitating 

fiance or someoene with whom the offender has previously has or had a dating relationship 

the mother of his or her child 

corporeal injury to that person

 

HOW DO I GET AN EXPUNGEMENT OF THIS OFFENSE?

Under the statute for expungement which is found in Penal Code section 1203.4 you can get an expungement for this offense if you are not currently on probation, have completed your probation period, which will always be formal probation for a domestic violence offense and are not currently facing or subject to any other charges.  

the court will always look to see if you had violations of your probation do you complete the 52 week batterer treatment program, and did you do as you were directed by probation.  

We always gather all information regarding he above requirements get letters of recommendation and do investigation before setting a court date to have the matter set for a possible expungement.  

WHAT IS THE EFFECT OF THE EXPUNGEMENT?

The effect of the expungement is that you can for most places of employment and housing truthfully answer that you have not been convicted for any offensse and that is a truthful answer.  again what it will not do is completely erase the conviction and for government of background information for peace officer positions give you the right to not answer the question that you have never been convicted of a crime.  You shoul always consult with an Attorney when filling out applications and nothing in this article is meant as specific legal advice.  If you have questions after reading this article give us a call and we can sit down and help you get an accurate appraisal of your case give us a call 559 441-1418.

 

 

If you or a loved one is in need of an expungement and has served a prison sentence give us a call.  If you have questions after reading this article give us a call and we can help you out.  Our phone number is 559-441-`1418.  

 

Many times people hav come into my office and asked me if they can get an expungement after having served a prison sentence.  The answer to that question used to be a simple NO. However, there has been changes in the law including the law of expungement.  

 

The knee jerk response from me and other Attorneys was also no, expungements were not available to people that had served a prison sentence.  

 

WHAT HAS CHANGED IN THE LAW?

1203.42 has changed the law.  Convictions reclassified as Misdemeanors under prop 64 and prop 47, provided certain specific requirements are met as described below and the Judge finds it is in the best interest of justice then then expungement is still an option. 

 

WHAT REQUIREMENTS FOR A 1203.42 EXPUNGEMENT?

Under the the new (2018) law Penal Code 1203.42 one may seek relief under Penal Code 1203.4 (Expungement) if the conviction at issue is now punishable bya  county jail sentence.  Ths means that even if somoene served time in  state prison for a  felony conviction, that person can seek expungement fi the underlying conviction is now a misdemeanor.  

There are some other requirements under 1203.42 First, at least two years must pass after the applicant finishes hir or her setence probation or post release community superivion.  

Also, the covviction cannot be for a serious or violence felony, or certain offesnes involving children.  As serious felony is one listed under penal code 1192.7 (c) including any felony accomplished by use of a firearm.  A violent Felony is any crime listed under Penal Code 667.5 (c)The sex offenses at issue include, but are not limited to Penal Code 261.5 (d) statutory rape when defendant is now over 21 and the victim is under 16) 288 lewd act with a child) 288 c oral copulation with a child and 286 sodomy with a child.  

Third, the applicant may not be currently charged with a crime, on probation or supervised release or serving a sentence for a crime.  It should be noted that if somoene has been realeased on Parole, parole is reserved for those convicted of serious or violent felonies.  

Under Penal Code 1203.4 the court must allow a qualified petitioner with a qualified offense to withdraw their plea of guilty or no contest and then dismiss the complaint, relief under 12003.42 is discretionary.  That means the Judge can still deny the expungement.  Even if the person meets all of the requirements then the Judge can still say no usually they will state a reason but they do not have to and after a certain amount of time the person can reaply under this statute.  

 

WHAT HAPPENS IF THE JUDGE DOES GRANT THE RELIEF UNDER PENAL CODE 1203.42?

If the Judge does grant the "expungement" the effect is that you can legally answer no on private applications to the question have you ever been convicted of an offense.  As long as the employer is not a government agency or government sub contractor.  One must still disclose the conviction in applying for any state licens agency, or if seeking to opeate a state lottery or ru for public office.  

It is important to note that under 1203.42 the conviction may still be considered for jobe involving the suse of a firearm ie becoming a police officer and it can still be used to deny admission as a citzen if the person is not a citzen of the united states.  If you have further questions give usa call 559441-1418. 

 

If you or a loved one needs a certiificate of rehablilitation, then after reading this aricle is you have any further questions give us a call and we will help you out and get you on track.  Many times people come into our office frustrated because they are trying to do all the work alone and are having a hard time with the paperwork and procedures needed to obtain a certficate of rehablilitation.  

WHAT IS A CERTIFICATE OF REHABILITATION?

In short a certificate of rehabilitation is a court order declaring that a person convicted of a Felony has been rehabilitated.  If a petition is granted, it is forwarded to the Governer by the Court and constitutes the application for a Pardon.  The laws pertaining to a Pardon it does not guarantee that you will be given the pardon only that it will be forwareded by the governor.  

If you have been convicted of a Felony and reside in California you may apply to the superior court in your county of residence. 

Special laws apply to sex offenses.  Persons convicted of sex offenses that are misdemeanors specified in 290 may apply if the conviction has been dismissed under Penal Code 1203.4

Persons convicted under penal code section 288 288 a or 286 c are not eligible for a cerficate of rehablilitation.  

Some offender may be relieved of there need to register.  

WHO MAY APPLY?

1. You were convicted of a Felony and served your sentence in a California prison.

or 

2. A misdemeanor sex offense specified in 290 and that offense was dismissed under 1203.4 and 

have been discharged from custody, parole, or probation; and 

have not been incarcerated in any penal institution jail, or agency since release; and

are not on probation for the commissio of any other felony and 

have resided for five years in California immediately prior to filing the petition.  

PERSONS NOT ELIGIBLE

Those that do not meet the above requirements or 

those who are convicted of misdemeanors except those convicted of misdemeanor sex offenses sex offense as discussed above. or 

those convicted of sex offenses under penal code 286c 288 or 

those who are serving a mandatory life  parole, or

those persons in military service. 

WHEN TO APPLY?

Four years for persons convicted of penal code 187 209, 219 etc.  

2. Five years for any person convicted of any offense for which sex offender registration is requires under penal code section 290. there are some exception sto this.

3. two years for any persons convicted of an offense not listed above and that does not carry a life sentence or 

any additional years ordered by the cour if the person served consecutive sentences.  

PROCEDURES FOR APPLYING

The petition must be filed in the superior court of the applicant's current county of residence (Penal Code 4852.06) THE Petition can be obtained from the clerks office, if our office represents you the we will do this part of the process and go about getting the paperwork together and filing of the necessary paperwork.  

Once all the paperwork is filed and the proper people are notices then there will be a hearing scheduled.  The District Attorney will be present at the hearing and sometimes probation or parole will be there. 

the court could hear evidence or decide the case as the court sees fit.  I have sometimes seen cases where the court will allow testimony and have had my clients do some testimony with the district attorneys office asking some questions and then the court making a decision after that has occurred.  If you have any question after reading this article give us a call and we can help you out our number is 559 441-1418.  We can get you through this. 

 

 

Many times people come into my office confused about the difference between a Felony reduction and an expungement and how to go about the entire process and whether they are even eligible for a reduction and if not what relief they are entitled to in the law. 

If after reading this article you still have questions give us a call at 559 441-1418.  

WHAT FELONIES ARE ELIGIBLE TO BE REDUCED PER 17 B OF THE CALIFORNIA PENAL CODE?

 Certain offenses in Calfornia are punishable either as a felony or misdemeanor.  Those offenses are called "wobblers"  If you were convicted of a wobbler as a Felony, the Judge may be permitted to later reduce the offense to a misdemeanor so long as your sentence did not include a prison term.  

The easiest way to reduce a Felony wobbler to a misdemeanor is to request the reduction at the same time you are asking for an Expungement.  Alternatively you  can file a seperate motion to reduce seperately from your expungement.  You can file a motion to redcue any wobblers using the forms and instructions provided by the court.  

REDUCTION VIA PROPOSITION 47 OR PROPOSITION 64

for certain offenses you my be eligible for reduction per proposition 64 or 47 you should consult an Attorney before seeking relief under these statutes or even under a 17b this is because some of the relief offered may not entitle you to regaining your firearm rights and restoring those rights under the law.  Therefore, before you seek to do any legal work on your own get advice from an experienced Attorney to help you through the process.  

WHAT IF I WAS SENTENCED TO PRISION?  

If you were sentenced to prision the proper avenue for you to take would be a certificate of rehablitation.  The effect of this shows that you have completed your parole and a Judge has found that you are suitable have the certificate of rehabilitation.  This process can be lenghty in all of the above situation but may help you to get employment and to help yourself to move on with your life.  

A certificate of reahabiltation is an order signed by a Judge declaring the person convicted of a Felony is now rehabilitated.  If a petition for a certificated of rehabilitation  is granted, it is forwarded to the Governor by the Court and constitutes an application for a pardon.  A seperate application for a Pardon is not needed.  

The minimum level of but not a guarantee to apply is that you were convicted of a Felony or a Misdemeanor sex offense requiring registration.  and that misdemeanor was dismissed or on the Felony conviction you served a  prison sentence 

have been  discharged from parole 

have not been incarcerated since release 

have paid all fees fines and restititution 

are not serving any sentence on any other felony or on probation or parole and 

have resided in California for the immediate five years prior to asking for the certificate.  We always advice our clients to please get proof of all of the above before the scheduled date for the hearing.  You must be present for the hearing with all paperwork properly filled out and proof of everything.  The Judge will hold a hearing and you may even be asked to be sworn in and testify as to what is in the moving papers.  We always make sure our clients are prepared for this if it does come down to the District Attorney placing somoene on the stand.  

If after reading this article you have further questions give us a call at 559 441-1418 and we can help you to get thes offenses behind you.  

And to move on with your life.

If you or a loved one has been arrested for carrying a concealed dirk or dagger givfe our office a call and we can help you.  559441-1418. 

There is much confusion in the law and even amond some Attorneys as to what a dirk or dagger is and what constitutes some of the defenses for a dirk or dagger and what is not considered a dirk or dagger.  

WHAT ARE THE ELEMENTS OF THIS OFFENSE?

1. The person carried on there person a dirk or dagger

2. The knew they were carrying it

3. it was substantially concealed.

4. The defendant knew that it could be readily used as a stabbing weapon.

WHAT IS NOT CONSIDERED A DIRK OR DAGGER?

There is a recent California Supreme Court decision from People v. Castillo  which went into detail what is not considered a Dirk or Dagger.  The court in part said that an ordinary pocket knife was never considered a dirk or dagger.   This included a Swiss Army knife that was the subject of the above mentioned case. The court also went into the fact that just because a swiss army knife is concealed does not turn the swiss army knife into a dirk or dagger. 

DEFENSES TO CARRYING A DIRK OR DAGGER

Illegal Search and seizure mant times police officers pull someone over and commit flagrantly illegal searches and seizures, the officers will sometimes attempt to justify these unlawful searches after the fact.  Unfortunately many times they get away with it.  However, whenever there is a search in a case we always look to see if there is a basis for a 1538.5 otherwise known as a search and seizure motion to be ran on the case.  We will look for did the officer have probable cause to search a vehicle, did he or she have any reason to believe that the person was armed and presently dangerous, and other considerations.  This is done make sure the officer actually had reason to search and uncover the items the person was later arrested for. 

2. The object was not a dirk or dagger by the definition.  In other words the items was not and was never meant to be dirk or dagger.  This can be defense to the crime, and can be complicated as I have seen people prosecuted for carrying ordinary household items and later prosecuted for carrying a dirk or dagger, if the item in the eyes of the prosecution was carried in the manner ordinarily used for that items. 

3. THE ITEMS WAS NOT CONCEALED. 

In order to be liable the dirk or dagger must be concealed carried outside the clothing properly stored and visible can be a defenses to the crime. Many people for there work must carry things that are considered illegal in another context.  Therefore, if you are carrying the item in a manner in which the items was meant to be used and not a a weapon than that can be a defense. As you can see these can be very tricky areas where there must be research on the items and determinations made as to whether this defensed should be used. 

A knife carried in a sheat and worn openly suspended from the waist fo the wearer is not considered conealed.  

 

IF THE ITEM HAS INNOCENT USES

If the item has innocent uses than the Judge or Jury will look at all the sorrounding circumstances, such as where the person was going at what hour with whom and whether the items was altered in any way to dtermine if the person is guilty. Again these are factual determinations. 

IF THE ITEMS HAS INNOCENT USES

If you or loved on has been suspected or arrested for any homicide related offense you will have many quesitons.  If after reading this you have any questions give us a a call at 559-441-1418.  Below I will give an overview of Homicide law and give some defenses to the offense.  

WHAT IS A HOMICIDE?

A Homiicide is the unlawful killing of a human being by another with malice. and wihtout justification.  

WHAT ARE SOME OF THE DEFENSES TO HOMICIDE?

There are two types of defenses to Homicide.  One is a complete defense, such as Self Defense, Defense of Others, or the police have arrested the wrong person, meaning a false accusation.  There are other defenses however, this is meant to be a brief overall view of the law of Homicide. 

SELF DEFENSE

People are allowed to protect themselves from the use of deadly force if they reasonably  believe that they or someone else is at the risk of death or serious bodiy injury.  

Example: If someone pulls a gun on you and is robbing you, under most circumstances you could shoot the person to protect yourself from death or serious bodily Injury.  

DEFENSE OF OTHERS

A person is said to step into the shoes of another person when that person is facing death or serious bodily you can step into that persons shoes and use force necessary to protect a  person from death or serious bodily injury.  

FALSE ACCUSATION

Sometimes people that are accused of a Homicide may have been falsely accused of the crime.  This may happen through false innacurate in person false identifications or other problems.  

There are many other defenses and situations that occur in Homicide cases.  This area of the law is a vast and has undergone many changes in the past few years if you have questions in the future let us know and we can help you.  Call 559-441-1418.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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Fresno, CA 93704
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