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  1. #1
    anon99989 Guest

    Do I have to disclose my record?

    I'm in California.

    I'm 19 now, when I was 15, I was caught shoplifting. The security took me in, then released me to my parents. I was scheduled to go to court, but got put into a diversion program instead. Do I have to disclose this arrest if asked by an employee?

    If a background check is done on me, will this show up?
    Last edited by anon99989; 09-27-2004 at 01:40 AM.
  2. #2
    jpritchett81 is offline Member
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    Quote Originally Posted by anon99989
    I'm in California.

    I'm 19 now, when I was 15, I was caught shoplifting. The security took me in, then released me to my parents. I was scheduled to go to court, but got put into a diversion program instead. Do I have to disclose this arrest if asked by an employee?

    If a background check is done on me, will this show up?
    I'm not sure that would show up since you were a minor, that would be in your juvenile file. I'll try to find some info on that regarding that. Did you have an expungement?



    Here is some info on that procedure:

    What is Criminal Record Expungement?

    Expungement encompasses a number of processes that provide varying degrees of relief from the adverse effects of an arrest or conviction, including relief from inaccurate or incomplete arrest records or the dissemination and use of arrest records outside the criminal justice system to deny the former arrestee business or professional licensing, employment, or similar opportunities for personal advancement. The relief sought may include a general release from penalties and disabilities resulting from the criminal record, sealing the record from public view, or the actual destruction of the record.

    Some statutes governing expungement result in dismissal of the accusatory pleading against the defendant and release him or her from all penalties and disabilities resulting from the criminal record. However, in actual practice, the effects of a dismissal and release are often severely restricted. Often, they are limited to reinstitution of voting rights, relief from criminal registration statutes, or relief from impeachment, except when testifying as a criminal defendant.

    Many expungement statutes offer a broader scope of relief for a relatively narrow class of people. They provide for the sealing of a person's criminal records from the public and, in two cases, provide for both the sealing and the later destruction of the records. In addition, under the California Criminal Record Purge Program, the California Department of Justice voluntarily destroys criminal records in its files after they have been retained for requisite periods of time.

    Qualification for Expungement

    Under Penal Code Section 1203.4, a person must be released from penalties and disabilities resulting from conviction in any case in which the person has been granted and successfully completed probation, by either fulfilling the conditions of probation for the entire period, which includes specifically the full payment of restitution or fines imposed as a condition of probation, or being discharged before the end of the probation period. The court has discretion to do so in the interests of justice in other probation cases. The court does not have discretion to do so if the defendant served a sentence in prison on a felony conviction, or if the defendant was found not guilty by reason of insanity.

    An applicant is not eligible for expungement if he or she is serving a sentence or is on probation for any offense, or if he or she is charged with the commission of a crime. Certain sex offenses, certain misdemeanor provisions of the Vehicle Code, and infractions are exempt from this rule. The burden is on the applicant to prove that the probation requirements have been fulfilled, unless he or she has previously been relieved from probation restrictions.

    Procedure

    The person must be informed in his or her probation papers of the right of release, and of the right to petition for a certificate of rehabilitation and pardon. . . . The petitioner must be allowed to withdraw any plea of guilty or nolo contendere, or a guilty verdict must be set aside at any time after probation ends. The court must dismiss the accusations or information against the petitioner and release him or her from all but certain penalties or disabilities resulting from the underlying offense.

    The petitioner may be required to reimburse the county and city for the actual cost of services rendered, whether or not the petition is granted and the records sealed or expunged, up to $120. Ability to pay will be determined by the court using the standards of Penal Code Section 987.8(g)(2), and is not a prerequisite to eligibility for the requested relief.

    Effect of Release From Penalties and Disabilities

    The relief offered by a release from penalties and disabilities is limited to immunity from impeachment in a subsequent action, and the reinstitution of voting rights, the right to inform people that the conviction was dismissed, and probably the right to avoid impeachment in court as a witness (except a defendant-witness). Other consequences of conviction are not avoided when the person is released from penalties and disabilities of the offense. The person:

    (1) Cannot have his or her record sealed nor make it unavailable to the public; (2) May have a prior conviction pleaded and proved if he or she subsequently is prosecuted for another crime, including in a subsequent "Three Strikes" prosecution; (3) May not possess or own or have under his or her custody or control any firearm; (4) Must disclose the conviction in response to any direct question in a questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery; (5) May be subject to:

    (a) Disbarment;
    (b) Revocation of business and professional licenses;
    (c) Suspension of a medical license by the Board of Medical Examiners;
    (d) Suspension of a teaching credential by the State Board of Education;
    (e) Registration requirements;
    (f) Deportation; and
    (g) Revocation, suspension, or limitation on the use of the person's driver's license after two or more Vehicle Code convictions.

    Misdemeanants Not Granted Probation

    Under Penal Code Section 1203.4a, every misdemeanant must be released from penalties and disabilities of an offense when, for one year from the date judgment is pronounced, he or she has fully complied with and performed the sentence, lived an honest and upright life, and conformed to and obeyed the law. The court must release the person even if he or she has committed a new crime after the one-year period. However, the person may not be serving a sentence for any other offense nor be charged with a new offense. Although no specific case law has arisen on the issue, it is probable that the petitioner has the burden of proving the required qualifications for expungement.

    The defendant must be informed of the provisions allowing release at the time of sentence, either orally or in writing. The procedure is the same as that under Penal Code Section 1203.4: the plea or verdict is set aside, the case is dismissed, and the defendant is released from all penalties and disabilities of the offense.

    Under Penal Code Section 1203.4a, a misdemeanant is not allowed to petition for a certificate of rehabilitation as is allowed under Penal Code Section 1203.4. Although this prohibition has been found to deny misdemeanants equal protection of the law, the statute has not been directly invalidated.

    The effect of a release from the penalties and disabilities of a misdemeanor conviction is not entirely clear. Arguably, the effects are similar to those that occur with a release from conviction when the person has been granted probation because the two statutes are similarly worded. Furthermore, courts have made no attempt to distinguish the Penal Code statutes as they have Welfare and Institutions Code Sections 1179 and 1772, and instead have interpreted the statutes together. However, one apparent difference between the two Penal Code statutes is that a misdemeanant whose record has been expunged under Penal Code Section 1203.4 is prohibited from thereafter possessing or owning a firearm, 41 while a misdemeanant whose record has been expunged under Penal Code Section 1203.4a may possess or own a firearm except if the expungement is of a conviction for a violent offense.

    **UPDATE**
    In California your juvenile records do appear as a part of your criminal record. However, upon your 18th birthday, you are eligible to petition the court to have your juvenile records sealed. Once sealed, no one can gain access to them and they will remain sealed until they are completely destroyed five years after the date of sealing.

    It is very important to note, however, that in California juvenile records are not automatically sealed upon your 18th birthday! You must petition the court to have them sealed.

    If you graduated from the California Youth Authority, your juvenile conviction(s) typically, will have been automatically dismissed as a part of your graduation. However, unless you petition to have your juvenile records sealed and destroyed, they will remain on your record until your 38th birthday - at which time they will be destroyed.
    Last edited by jpritchett81; 09-27-2004 at 06:07 AM.
  3. #3
    jpritchett81 is offline Member
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    I found some more info. You said you completed a diversion program....

    In California, if you were referred to a "diversion" program, typically, your record will have already been changed. Example: If you successfully completed the diversion program, your record should have already been changed to show a dismissal rather than a conviction. If you failed to successfully complete the diversion program, however, your conviction will still be on your record unless, and until, you have it expunged.

    If I were you, I would check to make sure it's not there.
  4. #4
    CdwJava is offline Senior Member
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    Quote Originally Posted by anon99989
    I'm in California.

    I'm 19 now, when I was 15, I was caught shoplifting. The security took me in, then released me to my parents. I was scheduled to go to court, but got put into a diversion program instead. Do I have to disclose this arrest if asked by an employee?

    If a background check is done on me, will this show up?
    There is no such thing as a generic "background check" so there is no way to predict if this record would appear.

    However, in CA unless you are looking at a security clearance or working for law enforcement, the chances are slim that this record will ever appear. Also, employers here can generally only ask about convictions and not arrests. And in your case - if it really went to diversion - the arrest was removed from your criminal offender record once you completed diversion ... AND a "true finding" of fact was made against you as a juvenile, and you were not convicted (yes, it's a semantic argument, but I have heard it is a valid one).

    To be CERTAIN how you should answer, you need to consult an attorney. However, I would say it's a fair guess that in your case you can say that you were never convicted. And, they cannot generally ask about an arrest here - so that question would be one you should not have to answer.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  5. #5
    HomeGuru is offline Senior Member
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    [QUOTE=anon99989]I'm in California.

    I'm 19 now, when I was 15, I was caught shoplifting. The security took me in, then released me to my parents. I was scheduled to go to court, but got put into a diversion program instead. Do I have to disclose this arrest if asked by an employee?

    **A: of course not. An employee has no right to ask about your personal crime information.
  6. #6
    cbg
    cbg is offline Senior Member
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    On the other hand, if an employER should ask...

    Overall, I agree with Carl.
  7. #7
    anon99989 Guest
    Sorry, I should have been clearer. I know I don't have to disclose the arrest, but I wasn't sure if it counted as a misdemeanor conviction.

    I'm trying to become a volunteer firefighter (a county position) and they may run a background check.
  8. #8
    CdwJava is offline Senior Member
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    Quote Originally Posted by anon99989
    Sorry, I should have been clearer. I know I don't have to disclose the arrest, but I wasn't sure if it counted as a misdemeanor conviction.

    I'm trying to become a volunteer firefighter (a county position) and they may run a background check.
    Yes, they will check up on you. I believe they are allowed to ask about arrests for firefighter positions (volunteer or otherwise), but I seriously doubt an old shoplifting charge that went to diversion (i.e. no longer exists) will be a problem.

    However, if you LIE about it if asked, you will likely not get the position when/if they find out. And it is not so far behind you that they will not find out about it if they do even a cursory check of friends and family.

    How in depth they look in to your background depends upon the agency you are looking to come on with. Chances are it's not TOO in depth. But, if you lie about it, that will haunt you even more than the shoplifting will.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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