In June of 2006 I was charged with 211. I did not receive a strike. Am I able to get this expunged or sealed?

Asked about 1 year ago - Van Nuys, CA

I was 17 at the time and I did not recieve a strike. It has been 7 years since the incident with no other priors. I spent 2 weeks in juvenile detention and released with house arrest with no incidents.

Attorney answers (4)

  1. Greg Thomas Hill

    Contributor Level 20

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    Answered . The answer is yes to both of your questions, but I am making two assumptions that you need to be aware of. First, I am assuming that the sentence involved no more than a year in custody (I understand you actually served two weeks, but what was the sentence?) and that such a sentence was not imposed.

    Second, I am assuming that you did successfully complete probation, i.e. you did not violate probation.

    A case just came out about two weeks ago that addresses your question. The case was People v. Parker (2013 DJDAR 8077).

    Rick Parker, Jr., entered a plea in 2006 to a felony (possession or purchase of cocaine base for sale, Health and Safety Code § 11351.5). This was in the Long Beach Superior Court in Los Angeles County.

    The terms of the plea bargain were that Parker would receive a “joint suspended” sentence of five years in state prison, wherein the trial court sentenced him, but suspended imposition of the sentence and granted him probation. Parker then completed probation with no problem and sought to set aside his plea and dismiss the case under Penal Code § 1203.4 (expungement).

    The trial court denied the motion, stating that because Parker was sentenced to state prison for five years, he was ineligible for expungement. The court further explained that “the person, by operation of law, technically is in prison” after receiving such a sentence, so expungement is not available.

    Parker appealed this ruling to the Second Appellate District, arguing that the trial court made a mistake because 1203.4 is available for anyone who completes probation successfully, with certain exceptions (that did not apply to him). Under 1203(a), “probation means the suspension of the imposition or execution of a sentence.” Therefore, he was eligible for expungement despite having a “joint suspended” sentence.

    The Second Appellate District, in People v. Rick Parker, Jr. (2013 DJDAR 8077), agreed with Parker that the trial court made a mistake. It began its opinion by first agreeing with Parker’s observation of the text of 1203(a), but then further finding fault with the trial court’s reliance on a 1997 case, People v. Howard, 16 Cal. 4th 1081.

    In People v. Howard, the California Supreme Court similarly sentenced defendant at to a joint suspended sentence, like Parker. However, in Howard, defendant violated probation and the judge revoked probation, sending him to prison. In Howard, Howard sought expungement and the trial court denied the petition. Howard appealed the ruling up to the California Supreme Court, which affirmed the trial court. The judge in Parker then relied upon Howard.

    The Second Appellate District explained that once the trial court revokes probation, defendant’s status changed from probationer to prisoner. Once a prisoner, he was no longer eligible for expungement.

    Accordingly, the Second Appellate District reversed the trial court and the matter was remanded to the trial court to grant the petition.

    This case is significant because there is a pervasive misunderstanding that expungement is unavailable if one accepts a plea bargain to a “joint suspended” sentence. Mr. Parker’s appeal seems to remove this confusion.

  2. Michael Kevin Cernyar

    Pro

    Contributor Level 20

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    Answered . It's strange that this occurred at 17 without a strike unless the charges were reduced. So it will depend on how the matter was settled. Sounds favorable to have the matter sealed, but really need to review the file to make a meaningful determination. Good luck.

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    The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice... more
  3. Vijay Dinakar

    Pro

    Contributor Level 17

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    Answered . If you're 16 or older at the time of offense and get convicted of a robbery (pc 211), this is a strike forever. Perhaps it was charged as a robbery and reduced to a non-strike theft of person (pc 487c)

    For a Free Consultation Call: 408.313.5607
  4. Anthony Michael Solis

    Pro

    Contributor Level 20

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    Answered . If it is a non-strike, you should be able to seal your juvenile record. It's the strike that you can't seal, See People v. Nguyen

    No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT... more

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