California Criminal Defense Lawyer Blog

Legislature Enacts Post-Conviction Relief to Remove Potential Immigration Consequences After a Penal Code Section 1000 Plea

Last week I wrote about the immigration consequences that may attach to an “expunged” conviction. This week I offer better news. The California Legislature has addressed the immigration consequences that attach to certain convictions and will offer relief to some noncitizens who may be facing deportation due to a previous conviction on a deportable offense.

The first of these Legislative remedies concerns those who have pleaded guilty under a deferred entry of judgment as set forth in Penal Code section 1000 et seq. When a person is arrested on a first-time non-violent drug offense in California, he or she is often given the opportunity under this section to enter a plea of guilty, with that plea being “suspended” by the court and ultimately dismissed by the court if the defendant successfully completes a drug rehabilitation program. However, as with the other California statutes that provide for dismissal of a prior conviction, the federal government considers a deferred entry of judgment and dismissal under Penal Code 1000 rehabilitative relief only and it is, as far as the federal government is concerned, still a conviction with the same liabilities for a noncitizen for immigration purposes.

Many people who have been convicted on a misdemeanor charge or certain felonies for which they were not sentenced to prison can, after certain conditions are met, apply to the court for what is commonly called an “expungement” of the conviction. This relief is available under several statutory schemes, the most common being Penal Code section 1203.4. Referring to this relief by the term “expungement” is a misnomer because the conviction is not entirely expunged. But since everyone calls it an expungement, I will use that term here also.

When a defendant who has completed probation, or is otherwise discharged from probation, he or she may apply to the court to set aside the verdict of guilty and order the conviction dismissed. I discuss how this process is accomplished here. If the court so orders, the defendant is relieved of the penalties and disabilities resulting from the conviction and no longer carries the many burdens of having a criminal conviction on his or her record. For example, the former defendant no longer has to report the conviction on a job application (with some exceptions) and will reflect favorably when applying for a professional license.

However, many people are surprised to learn that the record of the offense still appears on the person’s Department of Justice criminal history record, although it now shows as dismissed. Furthermore, the expunged conviction still imposes some burdens upon the former defendant. For example, the offense must be reported if the former defendant is applying for certain jobs or wants to enter a career, which require licensing or are public service jobs, and the expungement will not relieve the former defendant of any firearm possession restrictions that were part of the conviction.

KNOCK AND TALK: A TACTIC POLICE USE TO BYPASS THE WARRANT REQUIREMENT

It’s the middle of the night. Someone is banging on your door yelling for you to open the door. Whoever it is does not identify himself and you do not recognize the voice. The adrenaline rushing, you grab the gun in your safe and cautiously open your front door with your gun in hand but pointed safely towards the floor. Just before you are shot dead, you see it was the police banging at your door. Sounds outrageous but that is exactly what happened to a Florida man, Andrew Scott, who committed no crime. In fact, the police were investigating a crime that had nothing to do with Mr. Scott. Accounts of the incident vary but Mr. Scott’s girlfriend, who witnessed the incident said Mr. Scott never even raised his gun and was retreating from the front door right before he was shot.

Now this incident, unfortunate though it was, was an isolated incident. The police tactic, known as “Knock and Talk” is an investigative tool used when the police have no search warrant but believe there is reason to search a residence so they knock and “request” to search the residence. While police often use this tactic, they usually don’t kill someone in the process but you can see how it could quickly escalate into a dangerous situation. The police don’t normally politely knock on your door and politely ask if they may search your premises. Polite requests are easy to decline. Rather, the police typically intimidate the resident by banging on the front door and staging a threatening presence, sometimes with many officers, guns drawn and sometimes even in SWAT gear as happened in a Michigan case over the dangerous crime of …. marijuana butter.

Our system of justice is designed to be impartial and fair. But judges and juries are not robots. In any criminal case, the judge and jury will not only view the evidence with neutral eyes and ears but will also rely on “soft” skills such as intuition and biases. A perfect example of this is during the sentencing phase. When a defendant is convicted of a crime, the sentence he or she receives depends—perhaps too much—on the perceived remorse of the defendant.

We like to think that we are good at detecting the heart and minds of others. When an offender is convicted of a crime he or she will often be called upon to make a statement during sentencing. This is the opportunity for the now guilty offender to offer contrition and remorse. It is not uncommon to hear a judge or juror opine after such a statement that he or she didn’t believe the offender really meant it — that the statement was merely used as an opportunity. And, that may be true. But can the judge or juror, even when tasked with this awesome responsibility, reliably infer the offender’s true motives and emotions?

There is a well-known study called “mind in the eyes” —you may be familiar with this study. Scientists showed study participants various photographs of a pair of human eyes. The study participant was then asked to pick the mental state or attitude that best matched what the eyes expressed. The participant was given a list to choose from such arrogance, annoyed, upset, or worried. Supposedly the test determines how well a person can read the emotions of others simply by looking at (or some would say “in”) their eyes. Another way of putting this is that we intuit the emotions and mental state of others from what their eyes are “telling” us.

DEPORTABLE CRIMES

With immigration a big topic in the news, many are confused about who exactly can be deported from the United States. It goes without saying that someone who is in the US without going through the proper channels, i.e., no visa allowing entry (undocumented), can be deported in most instances. Exceptions might be made on humanitarian grounds for example for asylum seekers and people who were born in another country but brought to the U.S. as children.

This post is about those who can be deported even though they are in the U.S. legally, whether on a visa, a resident alien, or categorized as an asylum seeker waiting approval or those who have been allowed to stay pending review of their particular case.

CRIME RATES REMAIN STABLE THROUGH CALIFORNIA’S POLICY REFORM ERA

In 2011 the Public Safety Realignment Bill became law in California. This legislation was designed to stem the “revolving door” of non-violent criminals in the state prisons. Realignment, as it is commonly called, was in response to the severe overcrowding in California’s prisons and mandated by requirements set by the federal court. It resulted in major changes in the state’s criminal justice system is administered.

Essentially, realignment provided for offenders convicted of certain non-violent, non-serious crimes would serve their sentence in county facilities rather than the state prison system. It sounds as though the bill just off-loaded low-level felons from the state to the counties and in many respects, that is true. But Realignment is also focused on a reduction in recidivism and has provisions that allow house arrest and other alternative sentencing schemes.