Pardons in California

People sometimes ask me; what is a pardon and how does it work? Well, here is some useful information for those who are interested.

Individuals who have been convicted of a crime in California may apply to the Governor for a pardon.  A gubernatorial pardon is an honor that may be granted to people who have demonstrated exemplary behavior following their conviction. Obtaining a pardon is a distinct achievement based upon proof of a productive and law-abiding life following a conviction.  Historically, governors have granted very few pardons.

For most, the first step in applying for a pardon is to obtain a Certificate of Rehabilitation from the Superior Court in the county where the applicant currently resides.  A Certificate of Rehabilitation is a court order declaring that a person convicted of a crime is now rehabilitated.  Generally, any person convicted of a felony may apply, provided that he or she meets the legal requirements of demonstrated rehabilitation.  There are special rules that apply to individuals convicted of sex offenses.  If the Court issues a Certificate of Rehabilitation, it is then forwarded to the Governor’s Office where it automatically becomes an application for a pardon.  The Governor’s receipt of a Certificate of Rehabilitation does not guarantee that a pardon will be granted.

Be advised though, there is no requirement that the Governor take any action on an application for a pardon.  Once the application is received, it is typically forwarded on to the Board of Parole Hearings (Board).  The Board may conduct a background investigation and make a recommendation on whether a pardon should be granted.  The Board may contact the District Attorney, investigating law enforcement agency, and other persons with relevant information on the applicant.

The length of time needed to complete the pardon process cannot be predicted.  Once a completed application has been received by the Governor’s Office, it is not necessary to contact the Governor’s Office to check on the status of an application.  If action is taken on the application, the applicant will be notified.

So, after all of this, what does a pardon actually do?  It is important to know that a pardon does not seal the individual’s criminal record or expunge the record of conviction (see my previous blog on expungements and petitions to seal and destroy adult arrest records), and the pardon itself becomes a matter of public record.  When a pardon is granted, however, the California Department of Justice and the FBI are notified so that they may update their records on the applicant.  The pardon is filed with the Secretary of State, reported to the Legislature, and is a public record.

A pardon will allow a felon to serve on a jury, will restore firearm rights to certain felons, will allow a felon to be considered for appointment as a county probation officer or a state parole agent (but no other peace officer positions), and it will allow specified sex offenders to be relieved of their duty to register in certain circumstance.

I hope this sheds some light on the pardon procedure and the effects of obtaining a Governor’s pardon.  If you would like additional information, please contact me at 619-822-7332 @Pabstlaw

Stun Guns in California

Taser

I recently had a client ask me whether or not it was illegal for his girlfriend to carry a stun gun for protection.  Here are some thoughts.

A stun gun, popularly know as a Taser, the main manufacturer of stun guns, is a device that is used or intended to be used as either an offensive of defensive weapon, which is capable of temporarily immobilizing a person by inflicting an electrical charge.

In California, most people may purchase, posses, or use a stun gun, and they do not have to obtain a permit.  However, you may not purchase, possess, or use a stun gun if you are: (i) a convicted felon, someone convicted of an assault under Federal or any State’s laws or the laws of any country, or have a prior conviction for misusing a stun gun under Cal. Pen. Code section 244.5; or (ii) addicted to any narcotic drug.

California law also limits minors’ possession of stun guns.  Those under the age of 16 may not posses them.  Minors who are 16 t 18 years of age must have parental or guardian consent.

Furthermore, it is illegal in California to carry or use a stun gun when you are in a secure area of an airport or in a passenger terminal in a harbor facility that hosts regular commuter operations; or in any state of local government building; or in any meeting that is required by law to be open to the public.  Violations of these rules are misdemeanors.

Finally, anyone who uses a stun gun to assault another may be charged with an assault.  Violations may be charged as misdemeanors or felonies, depending largely upon the facts of the case and the damage done to the other party.

This is meant to be a basic introduction to the laws surrounding stun guns in California.  However, it is important to recognize that there are other applicable laws that could come into play, such as concealed weapon laws and carry a deadly weapon laws.

If you have any questions about whether or not you are allowed to purchase, carry, or use a stun gun in California, or if you are facing charges for a stun gun violation, call me to discuss the matter further.

Dismissing Past Convictions (Expungement)

Most people convicted of crimes in California are allowed to petition for dismissal of their convictions after their conviction or plea of guilty, pursuant to California Penal Code 1203.4 & 1203.4(a).

In most circumstances, Cal. Pen. Code 1203.4 is used by individuals who obtained a probationary sentence for a felony or a misdemeanor.  Cal. Pen. Code 1203.4(a) applies mostly to those individuals who did not serve any probation for a misdemeanor or an infraction.

However, some individuals are not eligible for a dismissal at all.  You are not eligible if your conviction was for one of a few sex crimes. You may not obtain a dismissal of old Vehicle Code infractions.  However, all misdemeanor Vehicle Code convictions, including driving under the influence cases, may be dismissed.

Also, an individual sentenced to a term in State prison, even if that sentenced was suspended, may not obtain a dismissal.  Instead, former State prisoners should seek to vacate their conviction or seek a certificate of rehabilitation or a pardon.

If an individual is eligible, they must first complete the entire term of probation along with all terms and conditions, or have been granted an early termination of the probationary period. Additionally, if restitution was ordered in your case, you must have paid the entire sum prior to obtaining relief.  However, the Court is required to grant a dismissal if the petitioner has fulfilled the conditions of his/her probation for the entire period.

If you have a criminal conviction you think deserves to be dismissed, please call for a free consultation and protect your rights! 619-822-7332 @Pabstlaw #PabstLaw #esq4me #expungement #criminallawyer #criminalrecords #dismissal #conviction

 

Thumbtack Profile

In order to continue providing my clients with the absolute best services possible, I recently joined the Thumbtack community of professionals.  I am hoping that this will allow me to reach more people in need of legal services and protection of their Constitutional Rights.  Please visit my new profile on Thumbtack and let me know what you think.  As always, thank you for your continued support.

<a href=”https://www.thumbtack.com/ca/san-diego/lawyers/legal-services”>Law Office of Frank R. Pabst</a>

Subpoenaing Text Messages

I recently had a client ask me about ‘discovering’ text messages to aid in confirming certain facts in a case.  Although she didn’t use the term “discovery,” discovery is the appropriate term for getting every piece of evidence the other side plan on using against you.  Or as Joe Pesci said in My Cousin Vinny: ” … it sure would be nice to get a look at your files ….” Marisa Tomei was right on the money. The People have to provide it to a client or his/her attorney.

That’s all well and good.  But what if its information the People are not gathering and using in the prosecuting of your case?  Well, you have the right to subpoena that information which will aid in your defense.  But how do you do that?

Generally speaking, courts will allow admission of text messages if they can be adequately authenticated.  That means following the court procedure for subpoenaing evidence for hearing or trial.  Many courts have their own local rules and I urge anyone seeking further information to visit their court’s website.

 

Estate Planning Questions To Ask Yourself:

Many times when dealing with clients in the area of family law, the question arises whether or not that person should have a Living Trust.  Before answering that question, it is important to know what a Living Trust is.  There are two types of Living Trusts:  Revocable Living Trusts & Irrevocable Living Trusts.  With a Revocable Living Trust, you transfer our assets into the ownership of the trust.  You retain control of those assets as the trustee of your revocable living trust.  You can change or revoke the trust at any time you want.  An Irrevocable Living Trust, on the other hand, allows you to permanently and irrevocably give away your assets during your lifetime.  After you give away these assets, you have relinquished all control and interest in these assets.

When considering a Living Trust, ask yourself these simple questions:

  • Has it been more than 3 years since you reviewed your estate plan, including your will, life insurance policies and any other documents?
  • If you or your spouse passed away today, are you uncertain about what would happen to your property?
  • If you became incapacitated, would your family have to go through court proceedings to carry on your affairs?
  • Do you have minor children or other people who are dependent on you?
  • If a death occurred and court approval was required to release accounts for working capital, could it disrupt your business or family life?
  • WOULD YOU LIKE TO AVOID PROBATE OF YOUR ESTATE???

If you are concerned, please call for a free consultation about the benefits of having an attorney prepared Living Trust in your possession.

Interesting blog on the need for a Good Bail Bondsman

I like to start off my Monday’s by reading some of the many articles relating to the practice of law that I receive on a daily basis.  Below is a link to a very good short piece on the need for criminal defense attorney’s and everyone in general to have a strong relationship with a professional bail bondsman.

I would also like to shout out to Sanctuary Bail Bonds for their tireless work for the Firm’s clients.

I’m not a criminal. I don’t need a bail bondsman. Wrong!

Motions To Value Real Property

Recently, the U.S. Bankruptcy Court for the Southern District of California changed the proceedure involving Motions to Value Real Property and Avoid Juior Liens, AKA “Lien Strip Motions.”

The changes were enacted in order to streamline the Lien Striping process and allow theCourt to better handle the volume of motions currently be filed.

The most important change effecting our clients is that a full real property appraisal will be required for each and every Lien Strip Motion.  The Court will no longer allow B.P.O.’s or other evidence previously considered acceptable.  Fortunately, we always use appraisals and have an appraiser should our client’sneed a referral.

Contact us today for more information about striping a junior lien from your real property through a Chapter 13 Bankruptcy.

Adversary Proceedings to Avoid a Junior Lien? A New View From The Riverside Bench

There’s a new judge in the U.S. District Court – Central District, Riverside Division and he has a new take on what is necessary in order to ‘strip’ a junior lien on real property following a valuation motion.

According to Hon. Wayne Johnson, who sits in Courtroom 302 of the U.S. Dist. Court – Central District of California, Riverside Division, debtor’s may very well find themselves having to file adversary proceedings pursuant to F.R.B.P. Rule 7001(2) to obtain a order or judgment avoiding junior liens on real property:

“The relief granted is limited solely to valuing the collateral of a junior lienholder and determining the treatment of its claims in this bankruptcy case.  Nothing in the order granting the motion shall be construed to avoid a lien or determine the extent, validity, or priority of a lien or security interest.  The lien of the junior lienholder will remain of record and the junior lienholder shall retain all rights under the lien unless and until the Court enters a further order or judgment avoiding the lien.  If the Court confirms a plan of reorganization and the debtors timely perform all obligations under the confirmed plan, the debtors may thereafter initiate an adversary proceeding pursuant to F.R.B.P. Rule 7001(2) to obtain a further order or judgment extinguishing or avoiding the junior lien.” (emphasis added)

The full text of Judge Johnson’s tentative ruling in the Matter of Kevin W. Reily and Morgana R. Reilly may be found at http://ecf-ciao.cacb.uscourts.gov/CiaoPosted/default.aspx on pages 94-96 for April 20, 2011.

This becomes important when discussing the Lien Strip (or LAM) Motion process with clients as initiation of and representation in adversary proceedings is normally outside the scope of the initial representation agreement.  Specifically, they become more costly for the client.  As always, comments and questions are welcome.  I look forward to discussing this issue.

Frank R. Pabst

Judge Mann Confirms That MERS’ Is Not A Cure-All For Lenders’ Recording Woes

Every home owner in Southern California (as well as the rest of the Country) is familiar with the letter.  The one that comes in the mail from some corporate entity you’ve never heard of letting you know that they will now be servicing your mortgage loan.  Of course, the home owner is skeptical.  Not wanting to take any chances, the diligent home owner embarks on a Gilligan-Like “3-Hour Tour” attempting to get someone on the phone at this new servicing provider to confirm the information.

Meanwhile, for those whose homes are going to foreclosure, the larger question becomes; who actually owns the note?  Record numbers of homes are still being foreclosed upon.  We have all read and seen on the news how a lack of proper recording of all these transfers from one mortgage lender to another has provided home owners with a defense of sorts to a foreclosure action.  The mortgage companies argue that the invention of MERS (Mortgage Electronic Recording System) alleviates any legal issue concerning chain of title and thus, a particular foreclosure should move forward based on evidence of the MERS recording.

In a recent opinion involving a relief from stay motion in a Chapter 13 Bankruptcy, Judge Mann of the United States Bankruptcy Court, Southern District of California confirms the current view from the bench that MERS is not a cure-all for a mortgage company’s obligation to provide adequate proof of proper recordation of title.

“Relying upon controlling California statutory and decisional authority, the Court concludes MERS’ original involvement in this loan does not provide talismanic protection against US Bank’s foreclosure deficiencies.  US Bank’s failure to record its beneficiary status before foreclosure left [Debtor] with equitable title to his residence.”  In re: Eleazar Salazar can be found athttp://www.casb.uscourts.gov/pdf/opinions/10-17456.pdf

I’ve never been a big fan of MERS.  Even working as the foreclosure manager of a Federal Bank years ago I often found it difficult to ascertain who the current owner of a particular note was.  Judge Mann’s opinion in Salazar confirms the current view from the bench that reliance on MERS is insufficient and continues to provide a much needed weapon for home owners facing the possibility of a wrongful foreclosure action.

Frank R. Pabst

San Diego Criminal Defense/DUI & Family Law Attorney