The very first clinic was in November 2007. So the upcoming clinic on November 9th is its 5th year anniversary--and a fitting time for some reflection.
From the beginning of the clinic, we had 3 goals: (1) provide direct service to individuals with criminal records; (2) change private and public policies that adversely affect them (policy advocacy); and (3) empower them to challenge widespread biases and barriers on their own (community organizing). While we've had a number of "victories" for the first two, we did not do so well with the third, despite our belief that the organizing and empowerment of this community is by far the most important of the three goals. So, since the beginning of 2013, we've been engaged in a long internal discussion about how we can improve.
If you've been coming to the clinic, you may notice that we've begun to "pivot" the clinic's operation to do more community organizing. Changes will continue over the coming months. Hopefully, the next five years will see the clinic more actively supporting a growing movement against the regime of mass incarceration.
We often see superior court judges who believe that "joint suspension" makes 1203.4 ineligible. (Joint suspension refers to the grant of a probation after suspension of execution of a prison sentence.) One of our clinic clients was erroneously denied a 1203.4 petition on this basis back in 2012. This June, the 2nd Appellate District reversed the trial court's ruling and remanded the case.
CT Turney wrote the bulk of the opening brief but couldn't make it to the oral argument. I did for her (and took the credit for her excellent work). At the hearing, the bench was sympathetic to my argument that the case should be published to give a clear guidance to judges, given that most 1203.4 petitions are filed by self-represented petitioners. So it's published
A couple of months ago, one of the clinic's clients, represented by A New Way of Life Reentry Project, settled his Title VII claim
against a large trucking company. The case was filed back in 2009, and the EEOC issued a cause finding back in September 2012. The company's policy has been revised since the filing of the Title VII charge and will be reviewed by the EEOC for 5 years. The settlement affects up to 14,000 people nationwide. And it wouldn't have been possible without the work of the clinic volunteers, so thank you all!
I was in a foul, foul mood, but now I am not. Let me explain.
When a defendant does not pay all fines and fees, the court can (and often does) refer the remaining balance to a collection agency. And the court will often (not always) refuse to set aside the conviction under 1203.4 until all the balance is paid off. It's ass-backward to insist that the petitioner pay the money first, when he can't pay because he's unemployed. And he's unemployed because of his conviction, which he needs to set aside so he can find a job. And round and round we go. But that's not (the only reason) why I was in a foul, foul mood today.
I have a client who is willing to pay--despite the fact that he's been homeless for more than a decade. The court previously denied his petition because he didn't pay all fines. The problem here is that the collection agency, GC Services, cannot locate his account. The court record shows that the fines were referred to GC Services, and the court previously denied his 1203.4 petition because of it. But GC Services can't find his account, so round and round we go. I talked to 5 different individuals at GCS and got dropped from the call twice--before finally talking to one of their "supervisors" with a different phone number.
But then it hit me. These are good facts to challenge (some) courts' absolute refusal to exercise their discretion to grant a 1203.4 petition with or without the full payment of all fines and fees. In fact, the facts don't get much better than this. So is this an opportunity for strategic appeal?
UPDATE (9/5/2013): The court granted the petition after being told what was going on. No appeal.
Under California Health & Safety Code § 11361.5
, minor marijuana arrests and convictions are supposed to be sealed and destroyed by the court and other agencies after 2 years of the arrest without a conviction or 2 years after the conviction. California Health & Safety Code § 11361.7
tracks § 11361.5 and states that such records "shall not be considered to be accurate, relevant, timely, or complete for any purposes." This is as good as it gets when it comes to "expungement" of conviction records in California--with the possible exception of deferred entry of judgment.
As a way of reducing court costs, however, a proposal is being made to remove infraction marijuana convictions (under California Health & Safety Code § 11357(b)
) from the protection of these laws, thereby allegedly “saving” the Court’s staff from having to spend time locating and destroying these infractions for simple possession. And it's done via a trailer bill to the next year's budget. See attached. Of course, one can easily cut even more costs by de-criminalizing possession of a small quantity of marijuana in the first place. <sarcasm>But, no, that obviously is not the right thing to do.</sarcasm>
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In April 2012, Keiara Auzenne, a former co-chair of Reentry Legal Clinic, founded a self-help clinic in San Diego, called "San Diego Clean Slate Clinic," along with a long-time San Diego deputy public defender, Susan Clemens. SDCLC is held on the 1st Saturday of each month. Generally, South Metro Career Center hosts the clinic at 4398 Imperial Ave., San Diego, CA 92113, although, as I understand it, the intent is to visit other places in San Diego County from time to time. So, in February, they were in Vista but are back in San Diego through August.
We saw a lot of demand in Long Beach when we held a couple of pilot clinics there
. As a result, the Clinic decided to alternate the clinic location between our usual location in Watts and the new location in Long Beach. (The flyer is attached at the end of this post.)Watts Clinic
: February, April, June, August, October & December
WLCAC Bernice Watkins Vision Complex
10957 S. Central Ave., Los Angeles, 90059Long Beach Clinic
: January, March, May, July, September & November
Centro C.H.A., Center for Working Families
1900 S. Atlantic Ave., Long Beach, 90806
And we'd like to take this opportunity to again thank our volunteers for making this Clinic one of the largest clinics of its kind in California!
| Reentry Legal Clinic flyer (alternating locations)|
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A New Way of Life Reentry Project--the host community-based organization for Reentry Legal Clinic--opened a new office in Long Beach recently, in partnership with Long Beach City Councilmember Dee Andrews. As part of that collaboration, we are also starting a clinic down in Long Beach. It will be hosted by Central C.H.A., Inc. in their Center for Working Families. The first clinic is scheduled for September 15, 2012. A follow-up clinic will be held 2 months later, on November 17, 2012. This is a "pilot" project for the time being. Depending on the turnout, we may make it (1) permanent and (2) monthly. Stay tuned.
This morning's hearing was in Dep't S in Norwalk, before Hon. Roger Ito, for a discretionary 1203.4 that had been previously denied about 6 months ago. The client had a number of convictions, but the conviction to dismiss today was for possession for sale, a felony, in 2007. While on probation for this conviction, she picked up 2 new cases, one of which resulted in a successful Prop-36 dismissal and the other, an arrest dismissed by the prosecutor--both in 2010.
As a rule, when writing declarations for our clients, we do not address any arrest that did not result in a conviction, because, without the conviction, it is not conclusive evidence of the underlying conduct. However, Judge Ito rightly chastised my client (well, actually, me) for not addressing in her declaration the circumstance surrounding the 2010 arrest. As he pointed out, "in the interest of justice" analysis requires consideration of all facts before the court, and the dismissed arrest is a relevant fact for the purpose of such analysis.
From experience, I suspect that most judges have already made up their mind one way or the other before they hold a hearing. However, there are those few judges who really look at the evidence before them before issuing their ruling. It is for these few judges that we write a declaration and, if possible, submit evidence of rehabilitation. It's not right to deprive them of the full facts that may be of relevance to their decision-making--especially given that the opposing side may well bring its absence up as indirect evidence of the petitioner's lack of honesty.
The lesson has a happy ending. After a lengthy back-and-forth, the court granted the petition in the interest of justice, finding that the petitioner's interest in rehabilitation, coupled with the solid evidence of the record's hindrance therein (a letter of employment denial based solely on this one conviction), warranted dismissal.
Frankly, I wasn't well prepared for this morning's hearing for a 1203.4 motion. My excuse is that I was covering for my coworker while she was out on vacation and that it was supposed to be a mandatory petition--because it was believed that the client had fulfilled all terms and conditions of his probation. You can already tell where this story is going.
When the court called the matter, the judge remarked that he was going to deny the petition because there were still fines and fees owing. That was news to me. I acknowledged that I was not aware of this and asked how much they were so I could advise my client to pay. It turned out to be a little over $600--something that this particular client wasn't likely going to be able to pay in the near future. So I asked whether any restitution was owed--to which the court replied that the client had paid off more than $500 in victim restitution.
Just assume here with me that there aren't likely any other fines and fees that would've been included in his probation terms and conditions for this particular conviction. See, for example, People v. Pacheco (6th Dist. 2010) 187 Cal. App. 4th 1392, 1402
, where that distinction is set out: "The imposition of the court security fee as a condition of probation was unauthorized because like probation costs, this fee is collateral to Pacheco's crimes and punishment and as such, its payment may not be made a condition of probation." To complete this line of reasoning, People v. Bradus (4th Dist. 2007) 149 Cal.App.4th 636
holds that failure to pay fines and fees that are not
part of probation terms and conditions does not make what is otherwise a mandatory 1203.4 petition into a discretionary one. When I brought up this "Pacheco-Bradus" argument, the court stopped and really started looking into the case. Of course, I wouldn't have written this post, if the story ended there with the granting of this petition.
The court found that he had been arrested (and later convicted) of drug possession in 2008, during the term of probation for the present case. That would be a violation of the ubiquitous probation term that "probationer shall obey all laws of the land" during his term of probation. Given that his conviction was in 2003 and resulted in a 3-year probation, I gave it one more shot and challenged the court, arguing that his probation must have terminated by that time. Nope, the court replied. His probation had been revoked and reinstated (without an official finding of probation violation), so the drug possession occurred before the termination of newly-reinstated probation. Ouch. All I could do at that point was to ask the court to vacate its denial and to allow my client to withdraw the petition. The court granted that request, and now we'll have to refile. Of course, now that his petition is a discretionary one, his unpaid fines and fees will come into play.