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?
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!
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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.
For those that attended our Certified Volunteer Training program last year, the case of Obabueki v. IBM, 145 F. Supp. 2d 371 (SDNY, 2001)
should be a familiar one. Though we didn't go into it so much, what happened in its follow-up case, Obabueki v. Choicepoint, 236 F. Supp. 2d 278 (SNDY, 2002)
, should also be familiar. We recently applied the lessons learned from these cases for one of our clients. He now has a job that pays more than the combined salaries of the entire staff at the legal dep't of A New Way of Life. (We don't get paid a lot here.) First, I'll explain Obabueki a little bit, followed by a short list of lessons learned--before explaining how these lessons were applied for our client.Obabueki
By the time he applied for employment with IBM in New York, Mr. Obabueki had dismissed his 1995 conviction under California Penal Code § 1203.4. So, in reliance on his attorney's advice, he stated on IBM's criminal record questionnaire that he was never previously convicted of a crime, but Choicepoint reported the dismissed conviction to IBM. IBM asked Mr. Obabueki about the conviction, and he showed them a copy of the court order dismissing the conviction. IBM subsequently denied him employment, and Mr. Obabueki sued both IBM and Choicepoint under various New York state employment laws and also under FCRA.
The district court held in Obabueki v. IBM
that IBM could not be held liable under New York laws protecting job applicants with conviction history, because their decision not to hire Mr. Obabueki was based not on the precise meaning of 1203.4 (that is, whether he in fact had a conviction record), but on the discrepancy between 2 pieces of information Mr. Obabueki provided them (that is, "a lie"). According to IBM, the discrepancy (and the reason they didn't hire him) was between his initial denial of the conviction and the language of the court order granting a 1203.4 dismissal. In Obabueki v. Choicepoint
, which resulted in a jury award against Choicepoint, the court vacated the jury verdict and granted Choicepoint's motion for JNOV, holding that the denial of employment was due to Mr. Obabueki's "lie," not Choicepoint's violation of various FCRA provisions.
So what are some of the lessons we can learn from these cases?Lesson 1: Be consistent.
If you're going to trust the employer's compliance with Title VII and so disclose your dismissed convictions, do so each and every time they ask you. If not, you should never contest what shows up on the background check report with the employer. Deal only with the background check company. In other words, don't give the employer more than 1 version of your past history. This applies especially if you, like Mr. Obabueki, are applying for employment outside California, where 2 CCR 7287.4 prohibits employers from even asking about misdemeanor convictions dismissed under 1203.4.Lesson 2: Be proactive
Under FCRA and ICRAA, you have a right to inspect what the background check company has on you at any time. Find out what background check company your prospective employer uses. They may not tell you before you apply. That's fine. But they have to tell you the contact info of that background check company, including phone number, when they ask for your consent. At least remember the name of the background check company. As soon as you find out, you should contact the background check company and make sure that they won't report your dismissed convictions.Lesson 3: Be aggressive
In our experience, most background check companies don't take it seriously until an attorney gets involved. So hire an attorney. Or call the free attorneys at A New Way of Life Reentry Project (323-563-3575)--even before you apply for a job.Our client
Let's call him Bob. Bob has a long list of convictions, the last of which was more than 10 years ago. If he were applying for employment here in California, Civil Code § 1786.18 would've prevented background check companies from reporting any of those old convictions, but he had a great opportunity out of state. He called me right after he applied for the out-of-state job but before
he had to submit to a background check, asking me whether he should or should not disclose his convictions since they had all been dismissed under 1203.4. After I explained the relative risks of each approach, he decided against disclosing them. He gave me the name of the background check company, and I contacted them the next day, asking for a copy of his report and explaining that whatever they find in California should be dismissed under 1203.4 and cannot be reported under FCRA as obsolete arrest records not leading to conviction, Last Friday, they issued a background check report to the employer. It was clean. Bob is moving to the other state in a few days.
Although there are a number of existing services that offer "expungement" and/or other reentry legal services, it's always good to see a well-established organization entering the field to provide the service. The need grossly outweighs the supply in this field, after all.
So it's good to see that Asian Pacific American Bar Association (APABA) is hosting a pilot "expungement" clinic. A shout-out to Dennis Wu, the APABA Board member in charge of organizing the clinic. Below is a copy-and-paste from the most recent APABA email newsletter.
* * * *
Volunteers Needed for APABA's New Expungement Clinic
Saturday, 7/30, 9 am - 3 pm, PACE, 1055 Wilshire Blvd., Suite 900-A, Los Angeles
APABA is hosting its first Expungement Clinic with the Pacific Asian Consortium in Employment (PACE) on July 30. We are currently looking for volunteers to help clinic participants expunge their conviction records. No prior experience is necessary; training will be provided for all volunteers promptly at 9 am.
The Expungement Clinic will help attendees "expunge" their conviction records under Cal. Pen. Code §§ 1203.4 & 1203.4a. In California, while expungement does not truly erase a conviction from one's record, it does result in a dismissal of the original conviction that is reflected in the person's public record. Expungement is not available for certain convictions, but for those eligible, expungement may have significant impact on one's ability to find and/or maintain employment.
Even if people with conviction history have already turned their lives around and sincerely want to become productive members of our community, their past record makes it difficult for them to find employment, housing, and other traditional means of self-support. "Expungement" is a valuable (and sometimes the only) legal remedy to help these individuals achieve successful reentry. To volunteer for this clinic or for more information, please contact Dennis M. Wu at email@example.com or (626) 308-9882.
Inland Empire Latino Lawyers Association (IELLA)
, in partnership with San Bernardio Superior Court and Riverside Superior Court, recently started offering expungement services
to people with conviction history in San Bernardino and Riverside. Monica Mar, the executive director of IELLA, was with the Reentry Legal Clinic in our first year, and we are thrilled to see her pioneer offering reentry legal services to those in her service area. So congratulations to everyone!
IELLA isn't the first public interest agency to offer reentry legal services, however, in the State of California. We aren't either. Other agencies responded to their community's need for these services much earlier. And we take this opportunity to offer our gratitude to those who came before us--and those who will come after. We acknowledge that this is a long struggle, something that will probably last our lifetime and beyond. And we are so blessed to be in the company of so many good people on this journey. You can find some of them on this (slightly-outdated) map of reentry legal services in Southern California
In particular, at the Reentry Legal Clinic, we owe everything to the Neighborhood Legal Services of Los Angeles (NLS-LA)
and staff attorneys, Jose O. Tello and Josh Stehlik, without whose selfless assistance this clinic wouldn't have been possible. And we also thank the East Bay Community Law Center (EBCLC)
. Although they are in Berkeley, hundreds of miles away from us, their assistance too has been integral to our growth over the years.