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

Changed Circumstances & Chapter 13 Plans; Don’t Give Up Yet!

So there you are, cruising along making your Chapter 13 Plan payments on time when suddenly, the bottom drops out … again!  You’ve suffered a lose in income or an increase in expenses that simply cannot be avoided.  Now What?

Sections 11 USC 1323, 1329 govern Modification or Suspension of Chapter 13 Plan Payments.  While a debtor may modify a plan at any time before confirmation, after confirmation the plan may be modified upon the request of the debtor, the trustee, or holder of an unsecured claim.  However, the request must be approved by the Court upon a noticed motion and hearing.

Furthermore, a request to suspend payments on the plan may be made is the suspension will not extend the plan beyond the maximum plan length of 60 months (5 years).  In order to amend or suspend payments established by a confirmed plan, the debtor’s financial circumstances must have changed and those circumstances must be set forth in the motion.  Additionally, the motion must set forth the payments to be modified or suspended.  Attached to the motion should be proof of the changed circumstances (pay stub, termination notice, etc.) as well as amended Schedules I and J.  Also, a proposed amended plan should be submitted.

In summary, the Trustees and Courts are well aware that Chapter 13 Plan’s last for some time (3 to 5 years) and are sympathetic to changing circumstances.  Just because your financial situation changes, you don’t have to give up on your Chapter 13 Plan.  Consult counsel for a re-evaluation of your financial situation and to see whether a modification or suspension of your plan is feasible.

As always, please do not hesitate to contact me for more information on this topic and others.

Best Regards,

Frank R. Pabst, Esq.

Felony Leaving the Scene of an Accident can be a Positive Outcome

Recently attorney Frank R. Pabst took on a major media case in which the alleged victim, Miguel Rojas, a known local gang member, was killed in an auto accident.  The broadside collission case which resulted in the death of Mr. Rojas has received major media attention, having been reported on by San Diego Channel 10 News, CBS Channel 8 San Diego, Fox 5 San Diego, the North County Times, the San Diego Union Tribune, 760KFMB San Diego Talk Radio, as well as the Escondido Police Website.  The defendant and Mr. Pabst’s client in the case is Juan Carlos Carrillo and the case was heard in North County Courthouse, Vista, CA.

On July 3, 2011 at approximately 2:15 a.m., Juan Carrillo was driving his 1995 Lexus ES300 eastbound on Washington Ave approaching Fig St, and had two passengers in his casr at the time.  The alleged victim, Miguel Rojas, was driving a 1993 Dodge Caravan and was stopped in the driveway of 715 E Washington Ave.  As Carrillo approached the driveway at 715 E Washinton Ave, he is alleged to have been traveling approximately 73 mph in a 35 mph zone.  Mr. Rojas pulled out of the driveway onto Washington Ave in front of Mr. Carrillo producing a broadside collision.  During the collision, Mr. Rojas’ vehicle immediately caught fire and Rojas was unable to exit the vehcile.  Mr. Rojas was pronounced dead at the scene.  The cause of death was later determined to be blunt force trauma to the head and neck and smoke inhalation and burns.

Immediately following the accideent, friends and family of the victim began making death threats to Mr. Carrillo.  In fear for his life, Mr. Carrillo fled the scene of the accident.  Mr. Carillo along with his two passengers, are alleged to have ran away from the scene and were picked up by an unidentified person.  The unidentified person drove passenger Francisco Carrillo to Palomar Medical Centrer and Juan Carrillo went home.  Mr. Carrillo later went to the Escondido Police Department and claimed that Francisco Carrillo was the driver of the vehicle.  However, evidence demonstrates that Juan Carrillo was in fact the driver and Mr. Carrillo turned himself into the authorities admitting that he was indeed the driver of the vehicle involved in the collission.  Mr. Carrillo was later arrested and booked into the Vista Detention Facility and charged with violating Cal. Vehicle Code 200001(b)(2), leaving the scene of an accident resulting in death or serious bodily injury.

Due to the possibility of an additional charge of Gross Vehicular Manslaughter, Mr. Carrillo faced a possible exposure of up to four (4) years in a state prison.  However, as a result of negotiations and a Stipulation with Deputy District Attorney Brock Arstill to bind over at the Preliminary Hearing stage of the case, Mr. Pabst was able to successfully reduce client’s exposure.  Mr. Pabst was ultimately able to avoid an additional charge of Felony Gross Vehicular Manslaughter and negotiated a plea of guilty to the lesser charge of Felony Leaving the Scene of an Accident.  Consequently, Mr. Pabst was able to reduce the overall possible exposure to no more than one (1) year in a local County Jail.  Ultimately, Mr. Carrillo is likely to serve less than seven (7) months in County Jail for the lesser charge.

San Diego Criminal Defense/DUI & Family Law Attorney