Jeffrey George Moore
Jeffrey George Moore, Criminal Defense Attorney - Riverside, CA
Posted over 1 year ago.

Upon further review of 264.1PC, I'd change my response to point you to 707(b)(4) and (8), as (5) and (7) don't seem to be included. But the analysis doesn't change.

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Asker
Posted over 1 year ago.

Enhancement? There were no other charges. Without going into detail, the crime was as such: 2 males 1 female in a house, 1 male is in another room while the other 2 engage in a sexual act. Parents come home to witness sex act. 2 males told to leave house female sent to her room. Males arrested 1 week later. Police report says 1 minor was having intercourse with victim and the other was in another room acting as a look out. Victim admits that intercourse did occur between one male and acknowledges that the second male was in the house, but not in the same room. Charged with 264.1 PC. I requested the police reports and victim statements and have them in front of me and 264.1 is the only charge I see out of 20 something pages. I did read 707(b) (4) and (8), but I do not see anything that mentions a 289 PC, nor do I see anywhere about force and violence. So maybe the charge was inaccurate?

Jeffrey George Moore
Jeffrey George Moore, Criminal Defense Attorney - Riverside, CA
Posted over 1 year ago.

264.1(a)PC currently reads: "The provisions of Section 264 notwithstanding, in any
case in which the defendant, voluntarily acting in concert with
another person, by force or violence and against the will of the
victim, committed an act described in Section 261, 262, or 289,
either personally or by aiding and abetting the other person, that
fact shall be charged in the indictment or information and if found
to be true by the jury, upon a jury trial, or if found to be true by
the court, upon a court trial, or if admitted by the defendant, the
defendant shall suffer confinement in the state prison for five,
seven, or nine years."

This is commonly known as "Rape In Concert." It is not in and of itself a crime, but provides for a specific sentence when the crime of Rape or Forcible Sexual Penetration is committed by more than one person against the victim. Either the Rape or the Penetration in Concert would be included in 707(b). While I used the term "enhancement" in my answer, it's really an allegation that specifies an alternate sentencing scheme, if proven. So, a quasi-enhancement.

I have reviewed the history of 264.1PC, and this was the state of the law in 1997, as well. A subsequent amendment has added additional subdivisions to the section, but none of them effect what I've said so far.

The facts of the crime do not matter nearly so much as the crimes alleged and proven, at this point. The time to litigate the truth of the charge was in 1997. Now we are addressing the continuing impact of the adjudication. Focus on gathering the relevant and appropriate information, rather than the underlying facts of the case. Just my perspective.

If you don't have the charging documents, the court minutes or docket, or the sentencing report, then I'm not sure how you know what the minor was "convicted" of.

Force or violence is something of a term of art, and can include merely using the force needed to, say, open the victims legs, hold her down, or otherwise overcome her will and accomplish the act.

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Asker
Posted over 1 year ago.

I somewhat understand, but not fully. Actually, I'm not even sure what the charge was for the second person, but reading what was stated to the detectives by the victim, it didn't say anything like force or threats, only something like they started kissing and did started having sex. There were more explicit details, but are irrelevant. Yes, I have all the court minutes and documents....The minutes that have the name of the judge presiding over the case, my attorney, the court clerk, the D.A, etc....goes in a chronological list of what has been happening. Anywho, whether or not it can be sealed, can it be reduced to a misdemeanor and then sealed?

Jeffrey George Moore
Jeffrey George Moore, Criminal Defense Attorney - Riverside, CA
Posted over 1 year ago.

Nope. Not based on what you've said so far. Rape is not reducible. If the prosecutor charged you with the crime of 264.1PC (which isn't how I've dealt with it in the past, but I suppose it could be done that way), that's not reducible either.

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Asker
Posted over 1 year ago.

Ok. Seems like there is a lot of gray area with this charge being the only charge as a juvenile offense. 3 attorneys have basically said what you have said about it being a charge only given as a basis for sentencing in conjunction with another charge and that it wasn't explicitly listed on 707(b), but it is, and 2 attorneys have said that it was not listed as a 707(b) offense and that a 264.1 charge and one other charge that required 290 registration were the only 2 that were not 707(b) offenses and could be sealed. I chose to see what the attorneys on here have to say, because of the varying fees that the other 2 attorneys wanted to do the work to petition for the record to be sealed. Do you think that the court will be willing to make an exception for exceptional behavior and accomplishments? I'm one year away from receiving my state license to practice medicine as a physician's assistant and I don't want to have to register as a sex offender as it will definitely ruin my credibility to build a successful relationship with my patients. Unfortunately I did not know the long term effects of this when I was 15 and now I see that it is devastating. Unfortunately, if what you say is true then I will definitely not let my educattion go to waste as I will probably move to another country.

Jeffrey George Moore
Jeffrey George Moore, Criminal Defense Attorney - Riverside, CA
Posted over 1 year ago.

Well, "261PC" is not listed in 707(b), but "rape by force or violence" is, which is encompassed in 264.1PC. An argument could be made, I suppose, that a charge of 264.1PC isn't NECESSARILY in 707(b), but I think that argument fails based on the language of that statute.

There are numerous charges that expose a minor to 290PC registration that do not fall under 707(b), so far as I know. Minors are only subject to 290PC registration if they are actually committed to DJJ/CYA, so it tends to occur in more serious offenses, but there are other crimes that can conceivably send a minor to DJJ that do not fall within 707(b). That information is simply wrong, in my opinion.

264.1PC addresses forcible rape, forcible spousal rape (which is rape), and forcible sexual penetration. Those crimes are all covered in 707(b), with "rape" being referred to generically and not called out by reference to a specific statute (such as 261PC). While 707(b) specifically refers to "an offense specified in 289(a)PC", that is one of the items covered in 264.1PC. Since your offense seems to be based on a forcible rape theory, it probably doesn't matter.

I have found no case law that says that 264.1PC is not covered in 707(b), and that concept seems ludicrous to me.

Since WIC781 says the court SHALL NOT seal a 707(b) crime (if the minor was 14yo or older), I would encourage you to ask these attorneys to explain their theory in which 264.1PC is not a 707(b) offense. Simply saying that it's not in 707(b) doesn't cut it, at least not for me. There's enough wiggle room for a court to find in 707(b)(4) and (8) that I would put odds heavily against a sealing of that adjudication.

There is no exception allowed in WIC781 for accomplishments. If it's a 707(b) offense, the court has no authority to seal the offense.

I would honestly be surprised if you're able to get licensed as a PA with that criminal history and registration status. Have you enquired with the licensing board as to the likelihood of getting licensed?

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Asker
Posted over 1 year ago.

Well I was able to receive my state license as a nurse and I've been working in medicine (cosmetic surgery) for 9 years and infectious disease a year before that. My background check and live scan always comes back clear when renewing my license. I was told after being released from the youth authority that my background would come back clear as it was a juvenile offense and I have not had any encounters with law enforcement, except for my annual registration. My concern would be when I am required to apply for my DEA license to prescribe narcotics and other medications regulated by the federal govt. I just feel like it would be a can of worms since giving someone the authority to prescribe a controlled substance is a huge responsibility and I wonder if my juvenile record would be accessed and then everything would come to light. I suppose I could contact the medical board anonymously and find out. I'm not sure who is abl to look up my background, but I figured since I always check out clear through my live scan and I am also on staff at the hospital and work with anyone from infants to the elderly then I should be ok.