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  1. #1
    seru is offline Junior Member
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    Expungement Denied.What Next?

    What is the name of your state? CA
    In 8/04, I went to court for a hearing regarding two Expungement petitions. One, a misdemeanor (P.C. 273.5 (A)-Causing Spousal Injury- for a conviction in 4/98). The other, also a misdeameanor for Hit and Run accident- conviction 11/97.

    I noticed a Pro-temp judge (Commissioner) was going to hear my case. I told him politely that I prefer to come back and have my case heard by the court’s regular judge and the Commisioner agreed, but gave me a mean look.

    At the next hearing, the regular court judge only granted the petition for hit and run charge. He said to return in 90 days to see I stay clear of the law in this 90 days. Interestingly, I told the judge that one of the bailiff in next courtroom knew me well enough to speak about my character. Our kids played baseball for the same team. The DA's office opposed my suggestion and the judge agreed not to hear the bailiff. I did mention this to the bailiff after the hearing. That night the bailiff called me home to say the DA's atorney told him that they will not file an opposition when I next appear for my hearing. I was very happy when told of this.

    When I returned to court after 90 days, I saw the same Commisioner presiding instead of the other judge. I was told by the court clerk the original judge was transferred to another court and was not returning to the court my petition was filed.

    The Commissioner recognized me. He asked me if I had anything to say to the court. I had rehearsed my little speech the night before. Less than two minutes thru my speech the judge stopped me and said he had a good idea what I was going to say to the court. He than denied my petition. He felt I had some credibility issue because of the prior hit and run conviction(which petition by the way was granted by the other judge). I was sad and went home.

    My question is what are my options in fighting the judges ruling. I had a good chance of getting this great job had my petition being granted. Is it true my domestic violence charge (the one for which I had filed the expungement and the judge denied) will automatically be dropped from my records after seven years from the date of conviction. The 7 years comes up next 4/05. I would appreciate any help from you kind people in this forum. Thank you very much.
  2. #2
    CdwJava is offline Senior Member
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    Quote Originally Posted by seru
    What is the name of your state? CA
    In 8/04, I went to court for a hearing regarding two Expungement petitions. One, a misdemeanor (P.C. 273.5 (A)-Causing Spousal Injury- for a conviction in 4/98). The other, also a misdeameanor for Hit and Run accident- conviction 11/97.
    PC 273.5(a) is a felony. Did they drop it to get a plea?


    I noticed a Pro-temp judge (Commissioner) was going to hear my case. I told him politely that I prefer to come back and have my case heard by the courtís regular judge and the Commisioner agreed, but gave me a mean look.
    Okay. But, you got what you wanted - a hearing before a judge.


    The DA's office opposed my suggestion and the judge agreed not to hear the bailiff. I did mention this to the bailiff after the hearing. That night the bailiff called me home to say the DA's atorney told him that they will not file an opposition when I next appear for my hearing. I was very happy when told of this.
    The judge is not obligated to listen to the bailiff talk about your character. It is likely not relevant in his consideration for the expungement anyway.


    The Commissioner recognized me. He asked me if I had anything to say to the court. I had rehearsed my little speech the night before. Less than two minutes thru my speech the judge stopped me and said he had a good idea what I was going to say to the court.
    Judges (even pro-tem judges) typically don't like long Parry Mason summations. Their day is usually too busy to hear every word of an argument that is not based on legal reference.


    He than denied my petition. He felt I had some credibility issue because of the prior hit and run conviction(which petition by the way was granted by the other judge). I was sad and went home.
    They were entirely different offenses. Not to mention that the underlying offense for PC 273.5 is a felony. AND it's a violent crime whereas hit-and-run typically is not.


    My question is what are my options in fighting the judges ruling
    Get a lawyer and appeal ... IF that's possible. And I am not sure you CAN appeal it, though I suspect you can. But I would recommend an attorney next time.


    Is it true my domestic violence charge (the one for which I had filed the expungement and the judge denied) will automatically be dropped from my records after seven years from the date of conviction.
    No, this is NOT true. It may drop off for certain 'lookback' periods for enhancements and other offenses, but it remains forever.


    - 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
  3. #3
    seru is offline Junior Member
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    CdwJava.
    Thank you so very much for taking the time in providing me with an in depth analysis. I shall respond to some of your queries once I get home from work.

    I just wanted to acknowledge your feedback prior to giving you answers to ?' you have raised. All court documents I have regarding my case does indicate misdemeanor P.C. 273.5(a).
    I will confirm this once I get home. Again, thank you so kindly for your valuable help, Carl.
  4. #4
    CdwJava is offline Senior Member
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    I believe that a felony CAN be dropped to a misdemeanor per something called a 17B4 motion ... so its possible it was sentenced as a misdemeanor. PC 273.5(a) is normally a felony.

    However, it is also possible that those offenses cannot be expunged. I honestly don't know.

    Hence my suggestion you get an attorney.

    - 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
    rmet4nzkx is offline Senior Member
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    Apparently you did a cccp 176.6 challenge on the comissioner thus your case assigned to the judge. Many courts have a form in the court or it can be done verbally, this is a one time challenge, that disqualified the comissioner for your case.

    When you came back for the subsequent date, when the judge was transfered your case should have gone to the presiding or supervising judge for reassignment and not back to the original disqualified commissioner.

    You can't do another challenge, or challenge because you don't like his decision, but you can file a motion to vacate based on error on the court's clerk's part by reassigning the disqualified judge under cccp 473 and ask for reconsideration.

    A record of the signd form should be in your file, request a copy of the entire file, or there may be a record in the case summary.

    You may need some help with this.
  6. #6
    seru is offline Junior Member
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    Thank you CdwJava and rmet4nzkx. Your suggestions will help my family and I make some important decisions in this matter.

    I like to let both of you know that there were a couple of interesting twists throughout the pendency of this case. For instance, I entered a plea of no contest on the advice of an attorney I retained during the early stage of my case. After my plea, both my wife and I felt the advice from the attorney did not seem the right thing. I was initially sentenced to spend 30 days (4 Saturdays) at a place called Scapula House, where I could do some of my DV classes. Plus I had to pay fines and do community services and complete the rest of the 52 weeks DV class.

    We than got another lawyer to see if he could go to court and have my plea overturned. He said it was almost impossible based on what he saw. He however took the case as he felt I was quite credible in what I believed to be a wrong advice that was not properly explained by both the DA and my attorney. The judge took the matter under submission and a week later gave her ruling. In my favor. Than I had to go for another plea bargain where all I had to do was attend DV classes ,pay a fine and 25 hrs of community services.

    And now that I read rmet4nzkx comments here, I guess I will be seeing more of these twists coming till the case truly comes to an end. For the good, I hope.

    You both have a very happy holidays and thank you again for your valuable, valuable assistance. Good night to you both.

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