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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?

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

Posted

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. This is true due to the anonymous nature of this venue, and the incomplete information which is invariably provided by the questions. It is imperative that you consult directly with an attorney regarding your specific situation before acting on or relying on anything represented here. Period.

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Jeffrey George Moore

Jeffrey George Moore

Posted

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.

Asker

Posted

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

Posted

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.

Asker

Posted

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

Posted

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.

Asker

Posted

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

Posted

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?

Asker

Posted

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.

Posted

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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Posted

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. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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