Determinate Sentencing Overturned--Rehearings Possible Statewide

The United States Supreme Court Monday struck down California's determinate sentencing law, opening the way for thousands of petitions for resentencing. In Cunningham v. California 07 C.D.O.S. the high court ruled that sentencing enhancements decided by judges are properly the province of the jury. Under current law, an offense carries three possible sentences, the judge being obligated to make the middle choice unless he or she finds mitigating or aggravating factors. The Supremes held that finding whether those factors exist is up to the jury not the judge.

It is unclear whether the decision will be retroactively implemented. Regardless, it seems that thousand of those previously convicted may be now able to file for resentencing hearings before a jury. See your lawyer or call KLG at 415-753-1889 for help.

Expungements--What They Don't Do

Many clients approach me wanting their criminal record cleared or expunged. Assuming they qualify, I must petition the Court to vacate their previous gulty plea and enter a plea of not guilty. If the Court does so, many regard their record as sealed but it is not. The statute still requires that you disclose your conviction in response to a direct question when applying for a government job, applying for a license (doctor, lawyer, accountant) or when contracting with the California lottery.

The California Judicial Counsel goes further saying you must answer a direct question about convictions from any potential employer, public or private.

More importantly your criminal record is not sealed. Your arrest still appears on police rap sheets, and in Court files. In can be used to enhance your sentence in later convictions. Investigative private agencies can and do get this information for private employers. Once the information is obtained by any agency it is shared with all much like a credit report.

The exceptions to the cleansing effects of expungement are so wide you could fly a 747 through them. Attorneys who tell you this procedure frees you up for a new life either don't know what they are doing or are dishonest.

There is a procedure which actually results in the destruction of your criminal records but it requires that you prove you were "factually innocent" of the accusation with which you were charged. Few people are able to prove this. There are also Prop 36 dismisals which will erase certain drug arrests (usually those for personal use). But even here if any investigative agency has a record of your arrest, it stays out there waiting for someone to request it.

There are advantages to expungements, particularly in immigration cases. Be careful, however, of what you are promised before forking over $1500 to a private attorney to "rehabilitate" your record.

Jack's Dilemma

You're probably wondering what happened to Jack. The shrink said he was psychotic but found him competent to stand trial. Competent simply means you know who the judge is and his role, as well as that of your lawyer and the DA. That's competent. Otherwise you can be seeing the courtroom in psychedelic zoom in and still be fit to go to trial.

So Jack's going to trial. He got busted again for telling his wife via the Internet that he loved her. Another $7500 in bail that Jack doesn't really have. But the trial keeps getting delayed. The judge regularly assigned to our courtroom has been laying low recently and the substitutes could be my grandchildren. So Jack gets one continuance after another. In February, IF the regular judge is there, I imagine he's going to start setting Jack's many indiscretions for trial.

Jack's defense is that he never hit her and I believe him. The domestic violence laws, however, include many other things besides classic battering: verbal abuse, stalking, threats. Jack can't get that one through his skull. His wife finds his many love letters harassing and in the end it will matter very little that he never hit her.

It's called the DV trap.