Can a 16 yr old felony charge that was plea bargain be dropped to a misdemeanor for a juvenile so that the record can be sealed?

Asked over 1 year ago - Banning, CA

The charge was 264.1 PC adjudicated in juvenile court in 1997. This charge does not appear under the list of 707(b) offenses in the WIC, but regardless of that, is there a way to have that charge dropped down to a misdemeanor? The case is over and done with, time was served, parole was completed, etc., etc.. There are no pending charges related or unrelated to this offense. Its just a matter of whether or not this can be dropped down to a misdemeanor to have the record sealed, if it is not sealable as a felony. The goal is to be relieved of 290 PC registration.

Attorney answers (3)

  1. Jeffrey George Moore

    Contributor Level 15

    4

    Lawyers agree

    Answered . I'm sorry, but you're barking up the wrong tree here.

    "264.1PC does not appear under the list of 707(b) offenses"? You're reading the wrong section, apparently. 264.1 is a sentencing enhancement of the rape sections for rape in concert. It's like 707(b)+. I would point you to 707(b)(4), (5), (7) and (8), depending on the type of rape that occurred in the case. None of these underlying crimes are reducible to misdemeanors, and sealing of the record is not an option, so far as I know.

    The (former) minor will need to pursue a Certificate of Rehabilitation (although I'm not positive that it applies to juvenile adjudications...) and/or a Governor's Pardon.

    Any statements I make in these forums (fora?) should not be taken as direct legal advice, merely informed guidance.... more
  2. Christine C McCall

    Pro

    Contributor Level 20

    4

    Lawyers agree

    Answered . I have read through the thread of discussion between you and Mr. Moore (who is a world-class criminal defense lawyer) and somewhere in there it became plain that you are presently State-licensed and now concerned about the potential for licensure for CA Phys Asst and for qualifying for DEA certification which authorizes prescriptions. These facts are not fully set forth or developed here, but based on the incidental references, these additional comments may lend some perspective.

    Juvenile offenses and criminal history are confidential by State law even without the benefit of the statutory remedy of sealing. Although the practice and understanding is inconsistent among State licensing agencies -- and even within individual agencies -- State agencies often will not try to access juvenile criminal history because of the statutory confidentiality designation. Sometimes, license applicants voluntarily or inadvertently disclose such history, and the State will then use it (usually unfavorably to the applicant, proving that no deed goes unpunished).

    For State agencies other than law enforcement, an order of superior court for sealing a juvenile record removes the option to act on the info even if it has been inadvertently disclosed by an unwitting applicant and, of course, an order for sealing prevents the State from choosing to demand disclosure of the matter. But the licensing agencies have only the crudest understanding (at the staff and analyst levels) of the functional differences of sealed vs confidential juvenile criminal history.

    The DEA is different and distinctly more sophisticated, perhaps because of the quality and availability of legal advice enjoyed by its staff. DEA's position is that it -- and other federal agencies -- are not bound by orders of state courts, nor by state statutes. This view is shared by the FBI on many issues, and there is, as you might imagine, controversy and disagreement about that position among lawyers. But this is the present DEA position and practice. This position sometimes extends to State court orders for sealing, but that practice, too, is inconsistent. So, sealing, even if available, is not always effective against fed agencies.

    There is not much you can do to make the DEA issues predictable for you. I cannot recommend an anonymous inquiry. The response, if there is one, will not be reliable, nor even presumably correct or true, and it will not give you any enforceable rights or claims if your reliance is misplaced. Even with or through an attorney, DEA (like State licensing agencies) will not engage in advisory or hypothetical discussions about specific fact patterns.

    So, yes, a PA application and investigation might be unsuccessful, but not necessarily so. There is not much risk that the effort can cause you any consequential damage or downsides.

    My advice is to engage a DEA-experienced attorney who practices extensively in professional/occupational licensing law. Put together the strongest application possible that anticipates every issue. The prior conviction is not a per se disqualifier and skilled counsel can very likely outweigh that fact with strong material pertaining to the statutory factors of rehabilitation and mitigation, as specified in California's statutes. If you can't make your juvenile info disappear for all purposes, you can nevertheless make a powerful case for approving your application notwithstanding that juvenile matter, if it used in the consideration at all.

    Good luck to you. I have former clients, adjudicated as juveniles (separately) for murder, att murder, and other non-sealable offenses, working under State health care licenses in major Southern California healthcare institutions; highly valued and respected and appreciated by their patients. Why not you?

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice.... more
  3. Robert C. Keller

    Contributor Level 20

    3

    Lawyers agree

    Answered . You should set up an appointment with an experienced criminal defense attorney and gave them review the entire matter to determine whether you are eligible to any relief. Good luck.

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