Applying for Deferred Action With a Criminal Record

Will your criminal record be a bar to your eligibility for Deferred Action for Childhood Arrivals? The new deferred action immigration policy has several eligibility requirements including a relatively clean criminal record. If you have a minor conviction on your record, are you still eligible? Is it worth getting your conviction expunged or dismissed? And if you are considering a plea bargain, are there certain charges you should avoid?

If you apply for deferred action status, the Department of Homeland Security (DHS) will consider you entire criminal record—including arrests and dismissed convictions, but not all convictions are considered bars to eligibility.  Below is a brief explanation and links to further resources.

1. Deferred Action is a discretionary policy, but these offenses generally disqualify an individual at the outset:

  • A felony conviction (offenses punishable by more than one year of imprisonment).
  • A “significant misdemeanor” conviction. “Significant misdemeanors” include: domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm, drug sales, burglary, driving under the influence, and any other misdemeanor for which you received a jail sentence of more than 90 days.
  • Multiple misdemeanor convictions: three or more non-significant misdemeanors, not including traffic offenses (such as driving without a license).
  • Convictions suggesting that you pose a threat to national or public safety (e.g., with gang enhancements).

Even if you have the above types of convictions on your record, you may be eligible under exceptional circumstances (See INA 240(e)).

How do you know what type of conviction you have? If you are considering applying for deferred action, you should request your entire criminal record (from the FBI as well as the Department of Justice in any state where you lived or were arrested) so that you can check for the exact status of any contact you have had with law enforcement and also so that you can check it for mistakes.

2.  Is it worth it to get an old conviction dismissed or expunged?

Having an old conviction dismissed or expunged may help your application if your conviction would otherwise automatically disqualify you. The Law Offices of Thomas Greenberg has extensive experience getting old convictions dismissed and can help you.

Another option—better than getting a dismissal—would be to withdraw your plea (if it was recently entered) for good cause under California Penal Code section 1018 or have your plea vacated (undone) for legal error.  It can be a complex and difficult process to get a judge to vacate your plea, but it may be worthwhile.

3.  What about juvenile convictions?

Juvenile convictions do not automatically disqualify you for deferred action, however, they will be considered.

4. What if you have criminal charges pending?

If you have a criminal case pending, tell your attorney that you are a noncitizen and that you want to try to preserve your eligibility for deferred action. You may want to consider the following options, if available: informally deferring an entry of plea; seeking a deferred adjudication; entering a plea to a lesser, non-significant misdemeanor offense and obtaining a lesser jail sentence; pleading to an infraction or a minor traffic offense—if you are facing a DUI, you definitely want to try to pursue a lesser plea to protect your eligibility for deferred action. The Law Offices of Thomas Greenberg has been very successful in helping clients get charges reduced and protecting their immigration status.

Additional Resources:

Own the Dream http://www.weownthedream.org/

Immigrant Legal Resource Center http://www.ilrc.org/news-events/new-updated-resources-on-criminal-bars-to-deferred-action-for-childhood-arrivals

U.S. Citizenship and Immigration Services: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD

 

Your Criminal Conviction and Your Job Application

Applying for a Job With a Criminal Record

The federal government is realizing how much criminal convictions for even minor transgressions of the law can hold people back from getting or keeping jobs. Currently, one in four Americans has a criminal conviction of some sort. Employers have a lot of access to applicants’ background reports. Employers can hold some convictions against you, but not others, and employers are required to follow certain procedures when looking into your criminal background.

This new video by the Federal Trade Commission provides some helpful information about how to deal with your criminal conviction when applying for jobs and what rights you have if you think an employer is discriminating against you for your criminal record:

http://www.ftc.gov/multimedia/video/jobs.shtm

 

 

Once The Restraining Order is Up, Should You Make Contact with the Alleged Victim?

Very often, people facing charges where a restraining order has been imposed want to approach the alleged victim after the restraining order expires in order to try to make amends or to find out if the person wants to testify against you.  Where children are involved or the relationship is complicated in other ways, the restraining order may have caused excruciating disruption to your life.  Is talking to the person protected by the restraining order before or while court proceedings are underway a good idea?

 These are some things you should consider before making contact:

1. If you talk to him/her, could you in any way be charged with the crime of dissuading a witness? Dissuading a witness/victim (PC 136.1) is a very serious charge that you do not want added to whatever you are already facing.  You may be charged with PC 136.1 if you prevent, dissuade, or intimidate a witness from doing any of the following:

    • Attending or testifying at any court proceeding,
    • Reporting the crime,
    • Aiding in the prosecution of the case, or
    • Aiding in the arrest process.

2. Is the alleged victim the person who called the police?  Keep in mind that this person got you arrested once and he/she might get you arrested again.  If the alleged victim is unstable or extremely angry, he/she may make a false report even if your is completely non-violent and within the bounds of the law.

3. Do you have anyone else who could talk to the alleged victim instead of you?  For personal matters, do you have a close friend or family member?  Regarding your case and whether the alleged victim is interested in testifying against you, it is best to go through a professional so that neither you nor your friend or family member risks being charged with dissuading a witness.  Can you go through an investigator?

4. Can you get a legal opinion before you talk to the alleged victim to find out what you should and should not say or discuss, and to find out whether talking to him/her is really in your interest.  The Law Offices of Thomas Greenberg have handled hundreds of these cases and are a good resource.  Call today to discuss your case.

Criminal Threats

California Penal Code section 422 defines the crime of “criminal threats” (formerly “terrorist threats”) as threatening to kill or physically harm someone, causing that person to reasonably fear for his/herself or his/her family member. The threat must be unconditional, unequivocal, specific and immediate. The threat may be communicated verbally, in writing, or electronically. If you are being charged with PC 422 and have made threats against multiple people or made threats on more than one occasion, you could face penalties for each threat communicated.

Criminal threats (PC 422) can be charged as either a misdemeanor or a felony. A misdemeanor conviction for criminal threats can result in up to a year in jail. A felony conviction for criminal threats can result in up to four years in prison, plus one year if a dangerous or deadly weapon was used. A felony conviction for criminal threats can be considered a “strike” under California’s three strikes law.

Criminal threats is a serious charge. Criminal threats is considered a crime of moral turpitude, and as such, a conviction for PC 422 may expose you to professional discipline or deportation or removal if you are a legal immigrant or alien. Criminal threats is also considered a crime of violence and is considered a deportable domestic violence offense if committed against a domestic violence victim. If a sentence of a year or more is imposed, PC 422 is considered an aggravated felony.

Criminal threats is often one of several charges filed in situations involving battery or domestic violence, although it is also charged as a single offense, such as if the prosecutor does not have enough evidence to substantiate a more grievous crime. Your attorney may be able to get your PC 422 charged reduced or dismissed. Depending on the facts, one of the following lesser charges may be a better option for you in plea bargaining:

  • PC 236 – false imprisonment (misdemeanor 236 generally is not a crime of moral turpitude)
  • PC 240, 241 – simple assault (not a crime of moral turpitude)
  • PC 415 – public disturbance (misdemeanor or infraction)
  • PC 594 – vandalism (not a crime of moral turpitude)
  • PC 602.5 – trespass (not a crime of moral turpitude)

Defenses for Criminal Threats

The facts of your case may support one or more of the following defenses:

  1. The statement was not specific – e.g., “What do I have to do to get your attention—burn down the neighborhood?” (it isn’t clear that a specific person is being threatened) or “I’m going to kill the (unknown) person who took my things and put her body on your porch” (the statement to kill an unknown person is not specific enough to be considered a criminal threat).
  2. The statement was equivocal.
  3. The recipient’s fear was not reasonable – e.g., the statement was so outrageous as to be unbelievable.
  4. The person who was threatened was not actually in fear.
  5. The person threatened only experienced fleeting, momentary fear.
  6. You did not intend your statement to be received as a threat—e.g., you were just blowing off steam.
  7. The statements were constitutionally protected speech. PC 422 is intended to punish those who try to instill fear in others; it was not enacted to punish emotional outbursts, and it does not punish such things as “mere angry utterances or ranting soliloquies, however violent.” (Ryan D., supra, 100 Cal.App.4th at p. 861, 123 Cal.Rptr.2d 193.).
  8. A threatening gesture was made but no threat was communicated verbally, in writing, or electronically.
  9. No threat was made—the allegation was false.

Additional Complications to Criminal Threat Charges

You may be facing significantly increased penalties if your charge of PC 422 arose out of one of the situations below:

PC 136.1: Dissuading a Witness

It is illegal to prevent or attempt to prevent any witness or victim of a crime from reporting the crime or testifying about the crime. If you attempt to dissuade a witness from testifying by threatening imminent harm, then you may be charged with PC 422 in addition to PC 136.1. PC 136.1 is a wobbler (it may be charged as a felony or a misdemeanor), punishable by up to a year in county jail (as a misdemeanor) or up to four years in state prison (as a felony).

PC 518: Extortion

Extortion is the use of force or threats to gain money, property, or other services. Extortion is a felony punishable by two, three, or four years in prison and up to a $10,000 fine.

Domestic Violence

PC 422 may be one of several charges filed after a domestic violence arrest, or the charge of criminal threats as a crime of domestic violence may be filed. Domestic violence charges may be filed if the victim is the defendant’s current or former spouse, romantic partner, roommate, child, or parent.

PC 646.9: Stalking

Stalking is the crime of harassing or threatening a person to the point that the person fears for the safety of his/herself or his/her family. The crime of stalking may be charged in addition to the crime of criminal  threats. A conviction for stalking adds up to five years in state prison (for a felony) or up to a year in county jail (for a misdemeanor).

PC 186.22: Gang Enhancement

Making a criminal threat for the benefit of a gang can increase the sentence for a PC 422 conviction by five, ten, fifteen, twenty years in prison, or 25 years to life.
Criminal threats is a serious charge, whether you are facing it as a solitary charge or combined with other charges. It’s important that you get an experienced attorney who will fight for you. The Law Offices of Thomas Greenberg has handled hundreds of PC 422 cases and can help you get the best possible outcome. Call today for a free consultation.

New Law Would Reduce Penalty for Simple Drug Possession

The California State Senate is considering a bill introduced by State Senator Mark Leno that would reduce the penalty for simple drug possession from a possible felony to a misdemeanor only, and would eliminate the recent trend of lengthy prison sentences for minor drug possession.  The bill, SB1506, recently won support from a Senate legislative committee.

California Simple Drug Possession Laws

You might think, didn’t California already reduce the penalty for simple drug possession?  No. Possession of meth and ecstasy and many controlled substances is a “wobbler,” meaning the prosecutor can charge either a felony or a misdemeanor, depending on the facts of the case; possession of cocaine, heroin, and many other drugs is a felony.  In 2000, California voters passed Proposition 36, which allows people convicted of simple possession to get treatment for drug use instead of going to prison, but the initial money for the program has run out and the state has not funded it further.

If SB1506 becomes enacted into law, California would become the 14th state in the country to treat simple drug possession as a misdemeanor.  Simple drug possession means drugs for personal use and not intended to be sold.  Under federal law, simple drug possession is a misdemeanor.  The bill does not apply to anyone involved in selling, manufacturing, or possessing drugs for sale.

Senator Leno’s reasons for reducing the penalty for simple drug possession are that there is no evidence to show that long prison sentences deter or limit people from abusing drugs, and meanwhile, harsh penalties for simple drug possession causes prison and jail overcrowding.  He added, “Time behind bars and felony records often have horrible unintended consequences for people trying to overcome addiction because they are unlikely to receive drug treatment in prison and have few job prospects and educational opportunities when they leave. This legislation will help implement public safety realignment and protect our communities by reserving prison and jail space for more serious offenders.”

Senator Leno believes that the bill would help alleviate overcrowding in state prisons and county jails, ease pressure on California’s court system, and result in millions of dollars in annual savings for both state and local governments.  Indeed, the Legislative Analyst’s Office estimates that SB1506 would result in annual savings of nearly $160 million for counties and approximately $64 million for the state. It also would reduce the average daily state prison population by about 2,200 people and the average daily county jails population by 2,000 people.

For more information, see:  http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/04/17/MNDU1O4MFP.DTL#ixzz1sWG1MAFq

Warrantless Search for Marijuana—It Can’t Be Based on Smell Alone

An unwarranted police search based only on the odor of drugs is not legal, according to a California appeal court.

The case involved the police opening a shipped package that smelled strongly of pot.  A FedEx employee smelled what she thought was marijuana emanating from a package that was to be shipped from California to Illinois.  She alerted the police, who seized the package and took it back to the station where they opened it and found pot.  The man who shipped the package, Kewhan Robey, returned to FedEx to ask why his package had not been shipped.  The FedEx employee called the police, who arrested Robey.  The seized package was later used as evidence against Robey.

Do they need a warrant to search for marijuana?

The Fourth Amendment protects you from unreasonable search and seizure.  This right is safeguarded by the warrant requirement—police need a warrant to conduct a search and seizure unless they have probable cause to believe that you committed a crime and what amounts to a strong reason to detain you immediately.  If the police see drugs, they have the right to conduct a warrantless search and to seize them.  According to the court of appeal, to smell drugs is not the same as to see them.

Defense attorney Thomas Greenberg has defended drug cases hundreds of times and is up to date about drug laws.  If you have been charged with a drug crime, defense attorney Thomas Greenberg can help you.  Call for free consultation (650) 242-0021

Wondering what to do when the police stop you?

This is almost word for word what I have been telling clients for years. Protect yourself when you are stopped by the Police by being very clear: “I want to speak to an Attorney”. Then, call Criminal Defense Attorney Thomas Greenberg!

Here is a link to a card that you can print off to keep with you, in case you forget what to do when stopped by the police. http://www.aclu.org/files/assets/bustcard_eng_20100630.pdf

Search This? During a Lawful Arrest, Police Can Search Your Cell Phone Without A Warrant

police search phoneAs of January 2011, if the police are lawfully arresting you in California they can search your cell phone without a warrant. This includes all of your cell phone contents—texts, voicemails, photos, videos, your list of contents and recent calls, plus any email and online services or apps you may subscribe to via your phone.

In January 2011, the California Supreme Court affirmed the Court of Appeal holding that an unwarranted police search of a cell phone text message folder during a lawful arrest for sale of ecstasy was constitutional. The way this went down was that police arrested the defendant after an informant who had been wearing a wireless transmitter purchased ecstasy from him. Upon arresting the defendant, police seized his phone and took him to the sheriff’s station where they interviewed him without an attorney present (he did not assert his right to an attorney!). The defendant denied having knowledge of the drug transaction. After the interview, police checked his cell phone texts and pulled up the message “6 4 80.” The police showed the defendant this message, told him they interpreted it as a price quote, and he then admitted to participating in the sale.

The defendant was charged with selling a controlled substance (Health & Safety Code, Section 11379(a)), a felony. He pleaded not guilty and moved to suppress the fruits of the cell phone search, arguing that the warrantless search was remote in time relative to his arrest (90 minutes), and therefore violated the Fourth Amendment. The trial court denied the defendant’s motion, the Court of Appeal affirmed, and the Supreme Court of California also affirmed.

The Court’s reasoning was this: the cell phone was immediately associated with the defendant’s person, like an item of clothing or a cigarette package, and therefore, upon lawfully arresting the defendant, the police were entitled to inspect the cell phone’s contents without a warrant. Unwarranted searches are generally unreasonable and violate the Fourth Amendment, however, there is an exception that allows police to conduct a warrantless search of the person and the area in the arrestee’s immediate control when carrying out a lawful arrest. That exception has traditionally been justified by the idea that police have a right to search for weapons that may be used against them, or for instruments of escape, or for evidence that may be concealed or destroyed. It is under this exception that police are allowed to confiscate personal clothing and items “immediately associated with the defendant’s person” for traces of evidence. The California Supreme Court held that a cell phone is immediately associated with the defendant’s person, and that the police were therefore entitled to inspect its contents without a warrant at the sheriff’s station 90 minutes later, whether or not an exigency existed.

Note, the Court did not say that the police can search your cell phone at any time or for any reason, only that the police can search your cell phone as a search incident to a lawful arrest. That means that the police must be lawfully arresting you—they must have a warrant or probable cause to conduct the arrest. If the police are lawfully arresting you and show you the contents of your cell phone to get you to answer their questions or make a statement, don’t be like the defendant in the case that went to the California Supreme Court! Call an experienced defense attorney before you answer any questions by the police other than providing your name and identification.

Is possession of ecstasy a felony in San Mateo County?

Possession of ecstasy San Mateo County?

Personal possession of ecstasy (violation of California Health and Safety Code Section 11377) is a “wobbler” and may be punished as either a misdemeanor or a felony, depending on the facts of your case and your criminal history. Factors that influence how the district attorney charges you include whether the drugs were packaged for sale or for personal use, as well as the amount of drugs found.

Misdemeanor personal possession of ecstasy is punishable by up to one year in county jail and a maximum $1,000 fine. A felony conviction for personal possession of ecstasy is punishable by sixteen months, or two to three years in California state prison, and up to a $10,000 fine. If you are facing prison time, you may be eligible to serve time in a drug diversion program instead of prison. Proposition 36 permits non-violent drug offenders to serve time in a drug diversion program instead of prison, and successful completion of the drug diversion program also results in dismissal of the conviction.

Depending on facts of your case, the district attorney may also charge you with violation of California Health and Safety Code Section 11378 (possession or purchase of ecstasy for sale) or violation of Section 11379 (transporting or selling ecstasy). Both of these offenses are felonies, and the San Mateo County District Attorney is quite aggressive about pursuing a conviction under these sections. In 2004, the San Mateo County District Attorney charged Antonio Rivera with felony possession of ecstasy for selling the dose of ecstasy that was the cause of death to 14-year old Irma Perez. Mr. Rivera pleaded guilty and was sentenced to five years in prison, in large part because he was young and did not have a criminal record

An experienced defense attorney can help you negotiate a plea bargain that includes a plea to a personal possession charge instead of a possession for sales charge. If you decide to go to trial, an experienced defense attorney will advocate to the judge or jury for your acquittal and, when it comes to sentencing, that you receive the most lenient sentence possible and for a drug diversion program instead of prison.

Does Probation Allow Medical Marijuana?

Does probation allow medical marijuana

Probation is a means by which the courts try to hold you accountable for your crime without having you taking up jail space or other resources. While you have the leisure of being free from jail, you are still under many restrictions, and by agreeing to be on probation you sign away many of your rights.

Abstaining from drugs and alcohol is often one of the terms of probation, and you risk a probation violation and potentially new charges if you test positive. Generally, if you test positive for a prescription drug like Oxycodone (Vicodin) but you have a valid doctor’s prescription, you will not be violated. Medical marijuana, however, is treated differently.

In most counties in California, a doctor’s recommendation for medical marijuana is not enough to avoid a probation violation. In these counties, you must ask the court to authorize the use of medical marijuana, either by putting the matter on the court’s calendar for a brief hearing or by filing a formal motion to modify the terms of your probation. The Probation Department does not have discretion to allow you to use medical marijuana, however, your probation officer might assist you with putting the matter on the court’s calendar. If not, ask a competent defense attorney.

If you are facing a probation violation for medical marijuana, it may make a difference whether your initial, underlying offense was related to marijuana or other drug use. In the case People v. Tilehkooh (2003), the California Court of Appeal struck down a probation violation for misdemeanor possession of marijuana and eliminated the condition that the defendant abstain from marijuana because the his initial offense was not drug related. The court stated that because his initial offense was not drug related, prohibiting the use of medical marijuana served no rehabilitative purpose. However, if restricting marijuana is reasonably related to your original offense, the court is more likely to uphold the prohibition. An attorney familiar with this area of law can advise you as to your best course of action.

Background
In August 2008, the California Department of Justice issued guidelines that many probation offices around the state follow. These guidelines provide that: “Criminal defendants and probationers may request court approval to use medical marijuana while they are released on bail or probation. The court’s decision and reasoning must be stated on the record and in the minutes of the court.” (CA DOJ Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use)

The California DOJ guidelines reflect the California Health and Safety Code, Section 11362.795(a), which states:

(1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.

(2) The court’s decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.

(3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.