July 2012 Archives

How To Seal Your California Juvenile Record

July 21, 2012,

Examining California Law: How to Seal California Juvenile Records

A common misperception among the general public is that, upon turning eighteen years old, an individual's juvenile criminal record is automatically sealed. However, in California, such records remain available for public inspection until a court issues an order to seal and destroy them. This can lead to problems down the road for adults who in their youth committed indiscretions, in situations with prospective employers, state licensing agencies, or landlords discover the juvenile record.


Requirements To "Seal" Records Of Juvenile Convictions

When a court "seals" a person's juvenile record, which can include arrest reports, convictions, probation records, etc., it is essentially closing the file, making it no longer public record. In order to qualify to have a record sealed, an individual must meet four requirements:

1. The individual is at least 18 years old or the juvenile court's jurisdiction over the person terminated more than five years ago;

2. The individual has not been convicted of a crime of moral turpitude as an adult, i.e. a crime that involves dishonest or immoral behavior such as fraud or theft.

3. The court determines that the individual has been rehabilitated; and

4. The individual is not subject to any pending civil cases arising from the juvenile incidents.

In addition to meeting the above requirements, the individual must not have been convicted of an offense contained in California Welfare and Institutions Code ("CWIC") 707(b) after turning 14 years old. Section 707(b) includes some of the most serious offenses such as murder, arson, robbery, and sex offenses.

Sealing Records of Juvenile Non-Convictions

California Penal Code Section 851.7 allows for sealing of a juvenile record if the individual, while a minor, was arrested for a misdemeanor and the individual was released because there were insufficient grounds to make a criminal complaint, the charges were dismissed, or the individual was acquitted of the charge.

In this type of case, the individual may petition the court to seal his or her juvenile record at any time and the record will be sealed if the court finds that the individual is eligible under one of these conditions. Section 851.7 states the "arrest, detention, and any further proceedings in the case shall be deemed not to have occurred, and the petitioner may answer accordingly any question relating to their occurrence."

In order to initiate the process of sealing a juvenile record, the individual must file an application under the relevant section of the California Penal Code in the juvenile court where he or she was most recently convicted. Although it is possible to complete this process without an attorney, it is generally a good idea to consult with an experienced California juvenile defense attorney who is familiar with California's juvenile court system in order to ensure the process goes smoothly.

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California Commission On Judicial Performance Disciplines Judges On Lindsay Lohan DUI Case

July 20, 2012,

Both attorneys and judges alike are bound by certain rules of ethics which impose obligations upon members of these professions as officers of the court system. Each state has its own rules regarding what attorneys and judges can and cannot do and the penalties for failing to follow the established rules. A recent high profile DUI case in California's Beverly Hills' Court demonstrates the consequences judges can face for failing to strictly adhere to their ethical obligations.

The Washington Post reported Monday that two judges involved in actress Lindsay Lohan's recent brush with the law have been disciplined in connection with their handling of the case. According to the story, Los Angeles County Superior Court Judges Marsha Revel and Elden Fox were reprimanded by the California Commission on Judicial Performance ("CCJP").

The CCJP determined that Revel had acted improperly by meeting alone with an attorney that wanted to take over the defense of Lohan's 2010 DUI case. Fox was disciplined for denying Lohan bail on a minor charge and refusing to hear her attorney's arguments on the issue. Both judges were issued "advisory letters," which are considered the lowest form of discipline.

California's judiciary is governed by the California Code of Judicial Ethics ("CCJE"). First adopted in 1996 and recently amended in 2009, the CCJE covers judges' behavior on and off the bench, stating "All members of the judiciary must comply with the Code. Compliance is required to preserve the integrity of the bench and to ensure the confidence of the public."

In the case of Revel, the CCJP likely found him to have violated Section 3(B)(7) of the CCJE which does not allow a judge to "initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding..."

Fox, on the other hand, was probably found in to have breached Section 3(B)(7) of the CCJE which requires a judge to "dispose of all judicial matters fairly, promptly, and efficiently. A judge shall manage the courtroom in a manner that provides all litigants the opportunity to have their matters fairly adjudicated in accordance with the law."

Although neither judges' misconduct was considered particularly egregious, it certainly had an effect on Lohan's case. Incidents such as these demonstrate that even judges can make mistakes, emphasizing the need for defendants to be represented by seasoned legal counsel willing to fight for their interests. Of course, those facing criminal charges have much on the line when it comes to these cases; jobs, financial penalties, custody of their children, and even their freedom hinge on actions in the courtroom. For that reason it is always unacceptable to have a lawyer or judge fail to adhere to strict ethical standards that ensure fairness for all those involved in each and every case.

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California's DUI Law - Primer On Field Sobriety Tests In Orange County And Beyond

July 14, 2012,

Standardized Field Sobriety Tests ("SFST") are a battery of tests administered by law enforcement agents to individuals suspected of driving while intoxicated and are designed to detect specific signs of impairment commonly known as "clues." SFST's were developed from research sponsored by the National Highway Traffic Safety Administration and performed in the 1970's at the Southern California Research Institute. The three most commonly SFST's used are the Horizontal Gaze Nystagmus Test, the One-Leg Stand Test, and the Walk and Turn Test.

Horizontal Gaze Nystagmus Test
Horizontal Gaze Nystagmus ("HGN") is the involuntary jerking of an individual's eye that occurs naturally as it moves to the side. Generally, nystagmus occurs only when the eye rotates at high peripheral angles. Alcohol impairment exaggerates nystagmus, causing it to occur at lesser angles and making it difficult for the eye to smoothly track a moving object.

In the HGN test, the tester observes the eyes of the subject as he or she follows a slowly moving object such as a pen or flashlight horizontally. The examiner is watching for three distinct clues in each eye:
1. Is the eye following the moving object smoothly?
2. Is the eye jerking at the maximum deviation, which is the farthest point it can move to the side?
3. If there is jerking, is the angle at which it begins within 45 degrees of center?

If the tester observes four or more clues, the subject is presumed to have a blood alcohol content of 0.08 or greater. The HGN test is often challenged based upon the fact that it fails to account for certain health conditions, such as hypertension, glaucoma, or inner ear problems that can affect an individual's performance on the test. In addition, substances such as aspirin, caffeine, and nicotine can cause the eye to exhibit nystagmus.

One Leg Stand Test
The One Leg Stand Test ("OLST") is often referred to as a "divided attention" test. This means that under normal circumstances, the test should be easily performed by most people, however, an impaired individual will have difficulty with the required tasks because they have problems dividing their attention between both mental and physical exercises. In the OLST, the individual is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands until told to put the foot down. The test is timed for 30 seconds while the tester looks for four clues of impairment:
1. Swaying while balancing.
2. Using arms to balance.
3. Hopping to maintain balance.
4. Putting the foot down.

If the tester observes two or more clues, the individual is presumed to have a blood alcohol content of 0.08 or greater. The OLST is often criticized because it can be negatively affected if administered on uneven surfaces, at night, or on a surface with no actual line to walk. Further, the test is unsuitable for people with back or leg injuries, individuals older than 65, and those with inner-ear disorders.

Walk and Turn Test
The Walk and Turn Test ("WTT") is also a divided attention test. In the WTT, the individual is instructed to take nine steps, heel-to-toe, along a straight line, turn on one foot and return in the same manner to the beginning point. In the WTT, there are eight clues of impairment:
1. Poor balance while listening to the instructions.
2. Beginning before instructed to do so.
3. Stopping to regain balance.
4. Failing to touch heel-to-toe.
5. Stepping off the line.
6. Using arms to balance.
7. Making an improper turn.
8. Taking an incorrect number of steps.

If the officer observes two or more clues, the individual is presumed likely to have a blood alcohol content of 0.08 or greater. The WTT, like the OLST, can be affected by the surface it is conducted on as well as various health conditions afflicting the subject.

The effectiveness of SFST's to detect intoxication generally depends on the examiner's observance of the standardized procedures for test administration and scoring. The National Highway Traffic Safety Administration has published materials describing ideal conditions for the administration of SFST's. These materials also recognize that ideal testing conditions do not always exist in the field. Less-than-ideal conditions and errors in the administration SFST's affect the weight such evidence should be given.

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Los Angeles Attorney and ACLU Sue Los Angeles District Attorney And Sheriff For Hiding Evidence

July 13, 2012,

Being charged or convicted of a crime does not mean that a citizen loses their basic rights. In fact, it is at those times when civil rights are most needed. While some convicted defendants are sentenced to jail and prison time, their incarceration is not a license for officials to do anything they please to those serving out their sentences. Those basic standards of decency are often ignored. Fortunately, some are now stepping up to shed light on abuses of by certain actors in the local criminal justice system.

As reported yesterday in MercuryNews.com, the Southern California America Civil Liberties Union, and others have jointly filed a lawsuit in Los Angeles County Superior Court alleging that the Los Angeles County District Attorney Steve Cooley, the Los Angeles County District Attorney's Office, Los Angeles County Sheriff, Leroy Baca, and the Los Angeles County Sheriff's Department, have engaged in various civil rights abuses since at least 2010.

The Lawsuit
Specifically, the suit claims that the defendants concealed evidence of assaults by deputies on inmates in cases where the deputies are the sole or principal prosecution witness. Court documents also claim that the Los Angeles District Attorney's Office had a policy of prohibiting disclosure of favorable evidence to criminal defendants, in spite of United States and California Supreme Court opinions mandating it be provided to criminal defense attorneys through the discovery process.

Due to the extent of the alleged corruption, the allegations, if true, could serve as the basis for challenging the outcomes of thousands of criminal cases over the last decade. The Southern California ACLU has filed a complaint with the California State Bar against Cooley requesting that independent counsel be appointed to review all cases that have resulted in guilty verdicts or plea since the program was allegedly adopted.

According to Mark Rosenbaum, chief counsel of the Southern California ACLU, the defendants have corrupted criminal trials for more than a decade, turning them into "truth-concealing perversions of justice: a system of injustice for all criminal defendants." Rosenbaum added, "This latest in a seeming unending series of law enforcement scandals on the part of County officials means that there can be no assurance that any of the many thousands of prosecutions during this period resulted in a fair trial."
In 1963, the United States Supreme Court held in the landmark case of Brady v. Maryland, 373 U.S. 83 (1963), that withholding exculpatory evidence in a criminal prosecution violates a defendant's constitutional right to due process "where the evidence is material either to guilt or to punishment." Further, in 1992, the California legislature adopted a law that requires prosecutors to disclose all favorable evidence to defendants before trial, and the California Supreme Court ruled in 2010 that the law imposes a duty upon prosecutors to disclose all unfavorable evidence as well.

The reason for this rule should be obvious to everyone: the criminal justice system is not about punishing as many people as possible, but rooting out the truth.

Unfortunately, justice is not always of paramount importance to those tasked with its pursuit. Prosecutors and police are sometimes overzealous, and, on occasions such as this, cross the line into unethical and potentially illegal behavior. The situation in California is just another reminder of the importance of obtaining experienced legal counsel in criminal cases.

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Los Angeles County DCFS Judge Reprimands Social Workers For Misusing Power And Harassing Family

July 2, 2012,

Today, an LA Times story reported that, during a hearing to consider financial sanctions against the Los Angeles County Department of Children and Family Services, Superior Court Judge Amy Pellman reprimanded department social workers for their handling of a juvenile dependency case.

The story describes a family consisting of two parents and eight children struggling with homelessness, financial difficulty, and, in the case of the father, alcoholism leading to domestic violence. The Department initially removed the children based upon these issues; however, what happened afterward is what drew Judge Pellman's ire.

In November of last year things began looking up, with the mother reunited with the children after procuring an apartment and the father receiving counseling for his alcoholism. During his therapy, the father was ordered to stay away from the children, but was willing to live in his car to save money to pay the rent. The children were getting straight-A's in school and participated in sports and dance.

However, the two social workers handling the case reported the family to the landlord for the apartment building, alleging the family was violating the lease by having too many people living in a single apartment. Based upon this report, the landlord evicted the family. Following the eviction, the workers contacted one of the children's schools to report that she no longer lived within the school district. The family narrowly avoided the child's expulsion by obtaining a waiver allowing her to remain in the school.

During the hearing, Pellman addressed social worker Eleanor Clements and case supervisor Juliet Macias, stating, "You are there to support this family, not harass them. If a parent is being nasty or obnoxious or disrespectful then you are the professionals, right? You are not to respond in kind, OK?" Pellman continued, concluding that the workers acted out of "bad blood" in an effort to stifle the family's progress. Ultimately, however, Pellman concluded that she did not have the authority to impose sanctions against the department because the workers' actions did not violate a court order.

The sanctions process stems from a judge's inherent power to punish individuals or entities that the judge deems to have violated the Court's authority. The imposition of such sanctions against the Los Angeles County Department of Children and Family Services have risen substantially over the last few years, nearly doubling from $25,000 to $48,000 between 2010 and 2011.

As evidenced by this story, the Department of Children and Family Services wields a significant amount of authority and has the ability to impose considerable restrictions upon parents it deems unfit. To make matters worse, Courts often rely too much on reports prepared by social workers to make decisions regarding the children at issue.

Thankfully, stories like this are coming to the public's attention. Finally the public can see what it only had heard anecdotally from parents caught in the nightmare that is dependency court. Social worker sometimes abuse their power and act out of malice when they don't like the parents or don't want them to succeed. A push for open courts is one solution to bring transparency to the system. Lauren K Johnson has written and spoken on this topic to the community. See her article in the CADC journal here and news about L.A.'s open courts here.

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