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General Comments September 2013

Comments that are not specific to a certain post should go here, for the month of September 2013. Contributions should relate to the cause and goals of this organization and please, keep it courteous and civil.

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  1. mch

    I found an interesting case that may give some a very slight ray of hope. People v Lewis (2006). I am not a legal mind so don’t get too excited. Seems Lewis was charged with a 664.288a and because it was an “attempt” he filed for the case to be expunged. Superior court said no, he appealed and won. From what I gather, certain conditions must be met:
    1. the 288 charge must be attempted (664) and a “wobbler”
    2. sentence can only be probation, no state prison
    3. successful completion of probation and payment of all restitution and no violations.
    Once again, I’m not a legal mind but I had an attorney explain this to me so all is not lost. I’m curious about the outcome, but far from hopeful. Not too much excites me any more.

    • JB

      I received an expungement earlier this year via 1203.4, however in California it does not relieve you of the requirement to register. I fail to see how requiring someone with no record to continue to register is NOT punishment. It is unconstitutional at its core and I would really like to see this be one of our areas of attack against what has become nothing more than an excuse for DAs and local law enforcement and politicians to justify their jobs. I am being forced to register for a conviction that no longer exists. No victim = no crime, period.

    • Anonymous Nobody

      mch, I am p[resuming you are actually talking about an “expungement” under 1203.4 PC for post-probation relief.

      From what you wrote, I am not clear on the issues in that case. However, from reading many cases involving 1203.4, I can tell you the courts have ruled that someone who successfully completes probation is “ENTITLED” to the relief offered by 1203.4 PC. That is, The only argument that prosecutors can prevail with against that relief is that the person did not successfully complete probation.

      1203.4 PC says anyone who has successfully completed probation. It does not say anyone who has successfully completed probably AND who was not sentenced to prison. It does not say any misdemeanant who has successfully completed probation — despite me having heard too many attorneys over the years mistakenly saying it is available only to misdemeanants. It says it is for anyone who has successfully complete probation. This is an “entitlement” for the successful probationer, not a capricious possibility like a certificate of rehabilitation.

      Because of your comments about a wobbler, and about the prison term (which means a felony), I have to think at least part of the argument was that a felon is not entitled to 1203.4 relief. Well, that’s not what it says. 1203.4 doesn’t even say it is not available if they charge was not a wobbler — if you got probation, you are entitled to that relief.

      Unfortunately, as JB points out, 1203.4 relief does not provide for an end to registration — although it once did, it once was the standard to stop registering, even for felons who got probation.

      But JB, while you really are correct, unfortunately, the courts have wrongheadedly ruled that 1203.4 is not actually an “expungement” and that the record of the fact of conviction remains — even though the language of 1203.4 says that the court sets aside the conviction (it used to say sets aside and vacates) and you withdraw your plea of guilty or no contest and enter a plea of not guilty, and the case is dismissed upon a not guilty plea. The courts now rule that despite what it says, the fact of conviction remains, there is no expungement. This because they see a conflict in that being so considering 1203.4 also retains certain disabilities (such as a felon not being able to possess a gun) that should not be possible unless the conviction remains. Considering what they saw as a conflict, the courts decided to rules in favor of undermining the relief rather than undermining the disabilities — this despite 1203.4 PC previously often referred to as “statutory rehabilitation.”

      It seems clear to me that the intent of 1203.4 was pretty much the same as pre-trial diversion, aimed at encouraging rehabilitation — just a bit more careful by holding the conviction over you until you proved yourself. But the courts’ interpretation seems to undermine that, instead drastically reducing any incentive for rehabilitation — quite missing the point.

      The courts say that after 1203.4, you do continue to have a record, and a conviction. You simply are relieved of some disabilities of it.

      • JB

        Anonymous Nobody, you are correct. Mine was a wobbler and could not be reduced to a misdemeanor. If you do a background check on me it will show a conviction and a subsequent dismissal after they reopened my case and I withdrew my guilty plea. Although I still must register, which is my main problem, I can legally say on a job or housing application that I have no conviction, so there is some relief that comes along with it. It’s also a requirement for a COR which o still have to wait another 5 1/2 years to apply for.

        The fight I want to have is to make 1203.4 the only necessary requirement to end the registration commitment. As far as law enforcement and the judicial system I am rehabilitated, by statute I am not and that is unacceptable.

        • Joe

          @JB – so you have a conviction for a strict felony that is not listed as an ineligible offense in 290.5 for registration termination with a COR? Better get that taken care of before some well-meaning legislator closes that ‘loophole’…

        • Anonymous Nobody

          JB, actually, 1203.4 was all that was needed to stop registering for both a felony and a misdemeanor until the mid-1980s.

          In the mid-1980s, they changed that pertinent statute so that felons had to continue to register despite getting 1203.4 relief. In the early side of the 1990s, they made a little word change that served to make it so that misdemeanants were no longer relieved of the registration requirement by getting 1203.4 relief.

          Then they made 290 retroactive, but the statute regarding 1203.4 relief from SOR was not part of 290, so retroactivity of 290 said nothing about retroactivity applied to those who already had been relieved of SOR via 1203.4 relief prior to that statute being changed so that it no longer served to relieve successful probationers from the duty to register.

          In the mid-2000s, that statute regarding 1203.4 relief and SOR was merged into 290 — and with 290 already ruled to be retroactive, that merger left the question of whether the 290 relief from SOR was now being taken away.

          That question was most directly addressed in the recent Harris case when the state high court ruled that the state of the law at the time of a plea bargain was not binding, and as laws changed, so too did the plea bargain — that is, that while you might have agreed to plead out because you would be able to stop SOR at the end of probation, that relief could be taken away later — and has been — despite your affirmative actions to meet the standards for relief and being granted that relief. (I note, the one point the high court did not address in the Harris case is whether the probationer’s affirmative action to meet the standard would make a difference to whether the relief could be taken away.)

    • One Day at a Time

      mch, I have been granted an expungement based on the Lewis case. It doesn’t have to be a wobbler. All a wobbler does is make it possible to be reduced to a misdemeanor if you were convicted of a felony, most register-able offenses don’t qualify as wobblers. Unfortunately I am now facing an appeal and can’t go into specifics.

      I’ve been coming onto this site for over a year now and this is the first time I am posting. I am very nervous as I fear repercussions as most registrants do. I am lucky to have awesome friends and family and the best girlfriend ever who understand that I’m not a danger to anyone and just made a stupid mistake.

      • leaglebeagle

        Can you say if your goal is a Certificate of Rehabilitation? Is your offense listed in 290.5? Mildly curious…

        • One Day at a Time

          Eventually I’d like to get a CoR but it will not relieve me of having to register as the law currently stands.

    • leaglebeagle

      @mch – you should look at the FAQ page on this site before dropping a load of cash on a lawyer. I am not an attorney, so I won’t charge 🙂

      As far as I know the only way to terminate registration for all offenses is with a pardon from the gov’ner (wouldn’t hold my breath), or in a certain cases a Certificate of Rehabilitation after a hefty waiting period. FAQ#9.

      The parameters of the Cert of Rehabilitation are spelled out in FAQ#10 (with the underlying code sections – you should read those yourself). Non-eligible offenses are listed in PC 290.5 – those are most felonies (but not all – and some can be reduced to misdemeanors)

      The first step to terminate registration this route is to apply for dismissal (expungement) under PC 1203.4. Note that certain offenses are not eligible for dismissal and therefore will not be able to terminate the registration requirement. Do not pass go, do not collect $200.

      Not eligible for dismissal under 1203.4 are: subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5 – (PC 1203.4). But according to Lewis they are.

      It used to be in the past that an expungement / dismissal automatically terminated registration. This was changed in 1994 or 98 and swept a whole bunch of people required to register no longer back into the club. Good deal, huh?

      In your original question you reference both 288a and 288. That makes a big difference as 288a(b) is indeed an offense that can be reduced to a misdemeanor under PC 17b if no prison sentence was involved, where 288(a) and 288(b)are a felony only, 288(c) looks like it is a wobbler, but these 288(…) offenses are non-dismissable under 1203.4, anyway and therefore the Cert is not an option.

      Now you say that in the case you cite, dismissal under 1203.4 is possible because it was attempted and a wobbler. 288(a) and 288(b) are not wobblers. Furthermore, section 288 (all of it) is listed in 290.5 as an offense for which registration is not terminated with a Cert. Even if Lewis prevailed and got his dismissal, and if he was able to get the Cert, he would have his conviction set aside, a piece of paper that he was deemed rehabilitated but still not relieved of his requirement to register? And that is the whole point, no?

      Even with Lewis, if your offense is listed in 290.5 (a non-reducable offense) I would guess you can safely save the money for the lawyer and hit the donate button on this site to help get the law changed. I did say I am not an attorney?

      Whether or not a registrant is eligible for web site exclusion is discussed in FAQ#12. This does not terminate registration, however, but gets you off the dreaded web site.

      Read (many times) the code sections linked in the FAQ. I would copy them into Word so you can format them into legible text – the layout is atrocious. You probably find your answer 99% there. Just like the lawyer would, right after burning through your retainer. You should also look at the Certificate of Rehabilitation Resource page on this site.

      Should you find a way, or should I be wrong, please share. I am only piecing this together from what is available on the internet. Good luck.

  2. Joe

    So while clicking around the internet I came across this old article

    RivCo supervisors approve enhanced system to track registered sex offenders

    he Riverside County Board of Supervisors today approved the implementation of an enhanced system to track registered sex offenders and advise residents when one moves into their neighborhood.

    Supervisor Jeff Stone introduced the Sexual Predator Identification in Riverside County Via Internet Tracking — or SPIRIT — program, which will be maintained by the District Attorney’s Office at an annual cost of $24,500. … July 2010

    I do not see it on the RCDA’s web site. What happened to it? What happened to the money?

    http://www.swrnn.com/2010/07/27/rivco-supervisors-approve-enhaced-system-to-track-registered-sex-offenders/

  3. mch

    Thanks Anonymous for clarification. So really an SO’s expungement really isn’t an expungement like other expungements? I wonder if that has been tested in court? If others whose cases are expunged are free from all penalties, then isn’t it a violation of equal protection to relieve all others yet keep that registration punishment just for a chosen few?
    Another question then; do you know of anybody who has had their felony reduced to a misdemeanor and then been relieved of the duty to register? How about successful exclusion from the internet?
    I’m trying to formulate a plan of attack, I hope to hit the lottery soon so I can afford an attorney!

    • Anonymous Nobody

      You seem to be misunderstanding a bit. No one who gets 1203.4 relief has an actual “expungement,” according to the courts — not just SOs. The penalties the court cites that make it so 1203.4 relief does not expunge the conviction are not SOR, but the other things listed in 1203.4, a list which has grown over the past two decades. The courts have ruled that SOR is not a penalty, is not punishment; it is simply an administrative action, a regulatory matter.

      I don’t know whether California has any other law that can provide for an real expungement for some offenders. There is another statute providing similar relief when probation was not granted. I think that relief is limited to misdemeanants. And I don’t think that one continues any penalties after relief is granted, as 1203.4 does. So maybe that is a real expungement. There also is something for felons, although I don’t know the specific details of that, and I doubt it is anymore an expungement than 1203.4 has turned out to be.

  4. Guest

    So now the Judge in the Montana teacher student sex case has ordered a re-sentencing hearing! While judges orders are often overruled, this is the first case I am aware that a judge overrides himself and entirely based on public reaction. What a circus this whole country has become! Bring out the pitchforks and light the torches.

    If I were a lawyer I would fall over myself getting my card to this defendant for his appeal after he is re-sentenced. But who am I kidding – I simply have to stop clinging to the law and the Constitution and pesky things like that.

    On another note, I got tired of pointing out on discussion forums to the morally superior mob the difference between rape and Intercourse without consent, per Montana law. I guess if you say it often enough and if it sounds right enough in some twisted horrible way it must be right…

  5. mch

    @ legalbeagle, thanks for the clarification and direction. I’m not going to dump a chunk of change on an attorney at this point, still doing my research. What I have found encouraging in v. Lewis is that the court determined an attempt (664) is in fact different than a completed offense. To what degree, I guess I’ll find out.
    My plan at this point is to try to get a reduction to misdemeanor, then expunge, then exclusion from internet disclosure. You’re far more versed on the legal aspects than I am so your input is welcome. I’ll give you my email if you’d like to correspond directly.
    Just a side note, I do hit that donate button every month and as I prosper that will be reflected in the donation to CARSOL.

  6. phil

    I agree with the comments before me. The Registry itself is unconstitutional. They are getting away by calling it a civil action and non punitive. They use it to make expostfacto laws. Unconstitutional laws. If this is not punishment then probation is not punishment either! If they can control one group of people they will go after another. What’s next concentration camps? Adolf Hitler did it!. These laws and registration need to be struck down.crime and punishment are supposed to be handled at sentencing. When probation is over its supposed to be over not trying to disguise it as a non punitive civil action. All SO get your head out of the sand.We are United States Citizens. We need to fight for our rights! Everyone who is not a S.O. think about your rights what may seem like a good idea now can affect your rights in the future. Politicians will do anything to get elected. They have been kissing baby’s for years and screwing the public once in office. Its easy to pick on a group of people that the government has grouped as one from the least of the offender to the worst of the worst.punishment is supposed to be administered at sentencing. It is not supposed to keep changing without notice whenever some wants to. We need to fight these people. Talk to a Lawyer. Let’s get some lawsuits against these politicians. S.O. have done wrong but nobody deserves the ongoing and ever changing punishments.

    • FRegistryTerrorists

      I agree. And one thing that people who are Americans, support civil rights, and are moral should not do is refer to people who are listed on a Sex Offender Registry as a “sex offender” or “SO”.

  7. Joe

    Last week I had to go pick up a prescription at the pharmacy. While waiting in line I studied all the signage regarding HIPPA and patient privacy.

    That must be something that does not apply to the State as they publish someone’s surgical scars or disfigured body parts on the internet.

  8. Joe

    From the President’s speech on Syria tonight:

    But when, with modest effort and risk, we can stop children from being gassed to death, and thereby make our own children safer over the long run , I believe we should act.

    I wonder how the tens of thousands of dead children in Iraq would respond to that – that it is not so bad getting killed by good old fashioned bombs and bullets? Or children in Vietnam – that poison gas is okay as long as the ‘good’ guys are the ones dropping it?

    Don’t get me wrong, I like children (well, my children), but please! Is this cheap rhetoric the best he has? I think we deserve better.

    http://www.youtube.com/watch?v=Qh2sWSVRrmo

    • Bluewall

      You mention children in any bill or law and it passes..
      If you say every adult male must be castrated for the safety of the children, and it’ll pass.
      If you say we have to raise taxes for the children, it’ll pass
      If you say we shall ban all firearms in the city for the safety of the children, it’ll pass..

      If you’re a politician and make “for the children” to be included in everyone of your speeches, you shall be a very favorable politician..

  9. Bluewall

    Can someone enlighten me on something thats been bugging me for years.. Since Halloween approaches and the battle of signs upfront begins again… I have been wondering.. How does anything protect the children? Seriously I was abused by a relative behind close doors of a family.. How doe any law protect any child from family? The children at church, children at school, children molesting other children in a bus… Its like every child needs to be visited by social services on a weekly basis to make sure they were not molested, but who is watching social services? Since they molest children too… its like trusting a crackhead to watch 50lbs of coke…

  10. mike

    A campus bill targeted at “publicly outing” 290 registrant students on Fresno State University’s campus was rejected this week.

    posted Sept. 18, 2013:
    Student legislation demands admin at public university identify sex offenders on campus
    http://www.campusreform.org/blog/?ID=5082

    “The bill calls for university administrators to post announcements around campus, inform students in a class with a convicted sex offender, and create a public registry page on the official school website.”

    Thankfully this was shot down by a majority vote of student senators that felt this was unconstitutional. This give’s me hope that our future generation will give these same considerations when looking at fear fraught legislation.

    posted Sept. 19, 2013
    ASI: Sex offender resolution rejected
    http://collegian.csufresno.edu/2013/09/19/asi-sex-offender-resolution-rejected/

    “How does this [resolution] avoid discriminating against what is now, in the federal government’s eyes, a protected class?” she (Student Senator) said. “If we’re ruling this, we are discriminating against a class that we’re presuming will be re-offending. In essence, we’re basically saying that they’re guilty until proven innocent.”

  11. mch

    Mike, That’s actually good news, or at least somewhat hopeful. I’m from that general area and got my MA from Fso State. The quote by the student senator shows a bit of wisdom and individual thinking. Thanks for posting.

  12. George Mead

    An incarcerated friend of mine has asked me to post an essay he wrote to forums interested in the topic.
    The essay is titled “THE POLITICS OF FEAR AND IGNORANCE: Political Agendas at the Expense of Public Safety”
    It is three pages long. A sample follows, if you wish to read the full document the pdf can be found at: http://goo.gl/FO0RiZ
    It is also available on line at: http://www.proseresearch.com/the%20politics%20of%20fear%20and%20ignorance
    The low recidivism rate of convicted sex offenders oddly remains a secret in today’s society. In McKune v. Lile, 536 U.S. 24, 33 (2002), the United States Supreme Court cites to the DOJ’s 1997 report on Sex Offenses and Offenders for the finding that all sex offenders have a “high risk of recidivism.” Yet this report finds the recidivism rate of released sex offenders for new crimes as 7.7%, and that rate is the second lowest rate of recidivism of all released offenders in the study. Also cited by the High Court for this apparent “high rate of recidivism” is another 1997 DOJ report on Recidivism of Prisoners Released in 1983. Interestingly, after making an inquiry to the DOJ, no such report was released in 1997.
    In Smith v. Doe, 538 U.S. 84, 103 (2003), the U.S. Supreme Court zealously upheld a sex offender registration and notification law by ratifying the Legislature’s findings that all sex offenders, as a class, have a high rate of recidivism without first independently verifying those facts.
    Without those unverified legislative findings, it would appear that the sex offender registration and notification laws would have been decreed unconstitutional. That would have called into question the constitutionality of all sex offender registration and notification laws across the country. The entire opinion of Smith v. Doe relied substantially on the unverified or otherwise affirmative misrepresentations about sex offender recidivism.
    When a constitutional right is at stake, the usual judicial deference to legislative findings gives way to an exercise of independent judgment of the facts to ascertain whether the legislative body has drawn reasonable inferences based on substantial evidence. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 666 (1994). Quoting from non-existent DOJ reports and making affirmative misrepresentations of fact from existing reports is not an exercise of independent judgment based on substantial evidence. It appears that a political agenda encouraged a desired result rather than a just and accurate one.
    Legislatures and courts around the country are now making serious decisions about laws based on the U.S. Supreme Court’s affirmative misrepresentations about sex offender recidivism. Why must the truth be a pliable commodity in this country and be distorted to fit political agendas? The politics of fear and ignorance remain the order of the day.

  13. Brubaker

    Heck yeah….@George Mead …your friends writings are always welcome here…especially on point…very good…
    thank him ..welcome him….excellent stuff…excellent …
    ‘the political agenda’ are the blinders that keep the truth accurate and fair treatment to justice from being allowed to work….orange county will get you guilty by corrupting the trial…their political agenda isn’t the truth ..its to get people guilty and they will cheat the system to do so.

  14. Bruce F.

    We register to vote as if that works if it did it would be banned it is a farce on All Sides starting with 2 IMO. Then We register for school,vehicles,hunting, fishing,every thing is REGISTERED Here’s a Rookie Question WHY SO MUCH REGISTRATION When did it begin & WHO did it start with? Yea Go back to History & You will See the truth of “REGISTRATION” it is a form of Religious or political, social Castration & Control! Period being Civil has nothing to do with it or WE wouldn’t Need Janice…LOL… Oh & You Pay for it one way or another. Ask Janice how much She has to Pay to register with the BAR & stay Compliant so She can Help Us…Yea it does cut deep into the fabric of Our Nation Has totally destroyed it at the family Unit IMO. But Who am I? Nobody a Ghost dead man walkin’! No Lawyer? No WAY You would ever win Unless You are 1 even Then? I do Know that it all is based on the $ & That is Soooo Weak to place humanity under a piece if printed paper that is no more valuable than Charmin TP! So What are We worth ? Depends on Yer Reward…You’ll have to register somewhere to receive it.
    Registered Rat now they will find a way to register Every One we already Are.

  15. Painted Bird

    I agree. We have, for whatever reasons, evolved into a society that feels punishment is the best and usually only way to solve problems. It doesn’t work. Look at the drug war and all the misery it has spawned. Punishment has a place, but we also need rewards for doing the right thing. By rewards, I mean acceptance. Adding restrictions to ones life, based on a past misdeed, for which you have corrected your behavior— that is the registry. And if you complain, the response is that you are lucky you are not in prison! It gives the message that despite what you do, you are a bad person. This is not good for anyone and it is hard to see how civil society can long survive in this environment.

  16. Tired of hiding

    So the US government is shut down due to lack of funds…perhaps if they stopped wasting money on useless things like illegally monitoring the movement of hundreds of thousands of US citizens who have long since paid their debt to society and putting them on a “hit list” they could use that money for paying the bills!

    Just an idea!

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