Monder Law Group - News

Expungement of Criminal Record

WHO IS ELIGIBLE?

An adult who was granted and has successfully completed probation, either by fulfilling the conditions of probation or being discharged before the end of his/her probationary period.

He/She must not be on probation or serving a sentence for any other offense.  (Pen. Code § 1203.4)

WHAT ARE THE EFFECTS OF EXPUNGEMENT?

>It Will:

1.    Result in the dismissal of the case;

2.      Allow you to answer on job applications that you have not been convicted.  If, however, you are applying for a government job or a job which requires a government-issued license, certificate or permit, or a job which involves a security clearance, the conviction will be discovered – in such cases, you should disclose the conviction and its expungement;

3.      If the conviction was for a felony, it is the first step in obtaining a pardon.

>It Will Not:

1.      Remove the conviction from your “Rap Sheet” – California and FBI criminal history records will still show the conviction and a dismissal “per PC 1203.4″;

2.      Reinstate the right to possess firearms (reduction to a misdemeanor may accomplish this if the offense is not one of violence;)

3.    Allow you to omit the conviction from applications for government issued licenses;

4.      Seal or otherwise remove the court case file from public inspection – anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing;)

5.      Prevent the conviction from being used as a “prior” to increase punishment in case of a subsequent conviction;

6.     Prevent the conviction from being used for impeachment purposes if called as a witness;

7.      Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as teaching credential, nursing license, bus drivers license, security guard certificate, etc., however, the expungement usually reduces the weight given the conviction by the licensing agency.

8.    Eliminate the conviction from consideration for Immigration purposes.

If you have any questions about an expungement of criminal record contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney

Monder Law Group - News

California Probation

Probation and the Law
Probation is often part of a criminal defendant’s California sentence.  When probation is given, the individual is allowed to remain a member of the community after jail time (if any) has been successfully completed.

California probation laws differ according to the type of probation given, such as:

• Formal Probation (Supervised Probation)
• Informal Probation (Summary Probation)

Formal Probation (or Supervised Probation) requires the defendant to meet with an assigned probation officer on a regular basis (usually once a month).

Informal Probation (or Summary Probation) requires the defendant to complete certain terms of the sentence and stay out of trouble.  Scheduled meetings with a probation officer are not necessary under summary or informal probation.

For all types of probation, the California criminal defendant’s sentence may include any or all of the following:

• Community service
• Counseling
• Physical labor
• Drug testing
• Jail time

Length of Probation
Normally, probation (formal and informal) lasts three years, but this could vary depending on the defendant’s circumstances.  In some felony cases, formal probation can last for up to 5 years.

When Probation is Violated
Probation is no joking matter and should be taken seriously.  The penalties for a probation violation depend on the severity of the violation.  In some cases, a second chance may be given and the probation violation will not affect the terms or conditions of the probation.

As soon as a probation violation occurs, an arrest may follow shortly thereafter and/or the defendant may be ordered to court for a probation violation hearing.  During the court hearing, the Prosecutor must prove the violation by more than 50% of the evidence, as opposed to ‘beyond a reasonable doubt’ which is necessary for a criminal trial.

There are several factors that the Judge and Prosecutor use when considering a probation violation.  They include:

• The seriousness of the probation violation
• The nature of the probation violation
• The history of previous probation violations
• New criminal activity surrounding the probation violation
• Aggravating and mitigating circumstances of the probation violation
• The probation officer and/or probation department’s view of the probation violation
• The probation violation with respect to the probation term (whether it occurred at the beginning, middle, or end of the probationary term)

If you have any questions about California Probation contact San Diego Criminal Defense Attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Defense 

Monder Law Group - News

Withdraw A Guilty Plea

You have been arrested, charged and brought before the court.  The judge has asked you to enter a plea, you have been offered a plea agreement by the prosecution and pled guilty to the charges against you.  The judge has sentenced you but now you want to know if it is possible to withdraw your guilty plea and substitute a plea of not guilty.  It is imperative that you know your rights and become aware of the options that are available to you.

Withdrawing Guilty Plea – Penal Code 1018

What is a guilty plea?

A defendant’s admission to the charges against him or her in open court.

How can you withdraw a guilty plea?

A guilty plea may be withdrawn on application of the defendant by having an experienced defense attorney prepare a motion to withdraw the plea and substitute it with a plea of not guilty, to be filed with the court. 

Who can withdraw a guilty plea?

A defendant who was not represented by an attorney or was represented by an incompetent attorney, or was coerced into the plea at the time the guilty plea was entered.  

A defendant who was granted probation when entry of judgment was suspended and who wasn’t aware of the consequences of entering a guilty plea or was prejudiced by a language barrier.

What are the requirements to withdraw a guilty plea?

For a defendant to withdraw his or her guilty plea, the court requires that the defendant be able to show good cause to withdraw the plea.

What is good cause?

Good cause is when the defendant can show that he or she did not intend to enter a guilty plea and entered into it as the result of ignorance, inadvertence, mistake, or some other factor that demonstrates overreaching.

What is the legal standard to show good cause?

A defendant is required to prove good cause to withdraw his or her guilty plea by a clear and convincing standard.  This means that it is more likely than not that the defendant did not freely, knowingly and  intelligently waive his or her constitutional rights at the time the guilty plea was entered.

When can you withdraw a guilty plea?

A motion to withdraw a guilty plea may be made at any time before sentencing or within six months after an order granting probation is made if the entry of judgment was suspended.

What can you expect if the motion to withdraw a guilty plea is granted?

If the court grants a motion to withdraw a guilty plea, it will be as if the defendant never entered the guilty plea in the first place.  The defendant will be placed back in arraignment and have the right to proceed to trial or to enter into a new plea bargain.

What can you expect if the motion to withdraw a guilty plea is denied?

If the court denies a motion to withdraw a guilty plea, the defendant will be obliged to complete the terms of his or her sentence.  The defendant may appeal the court’s decision only if he or she is able to prove abuse of the judge’s discretion or that the judge ruled based on a legal error.

If you have questions about how to withdraw a guilty plea contact San Diego Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney

Monder Law Group - News

Self Defense As A Defense

What is an affirmative defense?

An affirmative defense is an assertion to the charges against the person accompanied with a legal justification for carrying out the offense charged. 

What is not an affirmative defense?

An affirmative defense does not dispute the facts underlying the charges against the person or negate a particular element of the offense charged.

 What are the benefits of an affirmative defense?

An affirmative defense allows the person being charged to present evidence that reduces or eliminates his or her liability in order to obtain a dismissal or acquittal of the charges against him or her.

 What is self defense?

Self defense is the right of a victim acting on his or her own behalf to use reasonable force in order to defend their own life or the life of others.  In California self defense is an affirmative defense.

 What are the requirements for a valid claim of self defense?

The victim must have held a reasonable belief that he or she was in danger of harmful or unlawful touching, serious bodily injury, or death. The threat the victim faced must have been imminent in order to justify the use of force.  The victim must have held a reasonable belief that the use of force was necessary to neutralize the threat against him or her.  The force that the victim used must have been reasonable under the circumstances. 

 What constitutes a reasonable use of force for purposes of self defense?

The use of force allowed in an affirmative defense of self defense is limited to the force necessary to prevent the threat from actually happening.

 What offenses may a person assert self defense for?

A person charged of assault, assault with a deadly weapon, battery, aggravated battery, rape, domestic violence, or murder may assert self defense as an affirmative defense.

 When is self defense not justified?

There is no justification for self defense after the immediate threat of danger has ended for the victim. It is important to note that after the threat has been neutralized, any use of force by the victim will be considered retaliatory and not self defense.

 What is an imperfect self defense?

 Imperfect self defense is when a person genuinely believed there was an imminent threat against him or her and that deadly force was necessary to neutralize such threat, but either or both of these believes were unreasonable.   In California imperfect self defense is a partial affirmative defense.

 What are the benefits of a partial affirmative defense?

A partial affirmative defense allows the person being charged for the unreasonable use of deadly force to present evidence in order to mitigate the sentencing that will be imposed for his or her conviction.

 What offenses may a person assert imperfect self defense for?

A person charged with murder may assert an imperfect self defense.

If you have any questions about using self defense as a defense, please feel free to contact SAN DIEGO CRIMINAL DEFENSE ATTORNEY VIK MONDER AT 619.405.0063 or visit SAN DIEGO CRIMINAL DEFENSE

Monder Law Group - News

Fourth Amendment Waiver

What is it?

It is waiver of a person’s right to warrantless searches and/or seizures of  the person and his or her belongings.

Who does it apply to?

Parolees, probationers, and pre-trial defendants whose offenses relate to theft, narcotics or involve weapons.

Who has the right to carry it out?

Law enforcement officers, probation officers, border patrol agents, and other peace officers.

How does it work?

Parolees, probationers and pre-trial defendants agree prior to the fact to waive any objections to being subjected to searches and seizures as a condition of his or her release from custody.

A parolee or probationer is required to submit to searches and seizures by his or her parole or probation officer at any time of the day or night, with or without a search warrant, and with or without probable cause as a condition of parole or probation.

Defendants pending trial may be released on their own recognizance and required to submit to similar searches and seizures by law enforcement if such searches or seizures are reasonably related to the offense of the pending case and conducted in order to prevent and detect further crimes by the person.

What can be searched under a Fourth Amendment Waiver?

The parolee or probationer’s person, his or her belongings, car, and residence. It is important to note that anyone else riding in the car or living in the residence of a person subjected to a Fourth Amendment Waiver will also be subjected to search. However, residence searches should be limited to the common areas that the parolee or probationer has access to.

When does a Fourth Amendment Waiver expire?

A Fourth Amendment Waiver expires when the person’s probation ends, parole is discharged, or at the commencement of the defendant’s trial.

When is a Fourth Amendment waiver inappropriate?

If the Fourth Amendment waiver is not related to the crime convicted of but instead relates to conduct that is not criminal and the waiver does not prevent future criminal behavior, it is considered inappropriate and should be challenged.

The consequences of a Fourth Amendment Waiver may prove to be more detrimental than helpful to your case. Remember that a Fourth amendment waiver does not only impact you but can reach the loved ones in your life. Let us review the specifics of your case and help you decide if this is in fact a good option for you.

If you have any questions about a Fourth Amendment Waiver, feel free to contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

Monder Law Group - News

California Sex Offender Registration

What is it?

It is a mandatory life long penalty imposed on people convicted of a sex offense in California, requiring them to register as sex offenders.

What are some registrable sex offenses in California?

Violations of California indecent exposure law (P.C. 314), rape law (P.C. 261), sexual battery (P.C. 243.4), lewd acts with a child (P.C. 288), sexual abuse of a child (P.C. 269), contributing to the delinquency of a minor (P.C. 272), pimping and pandering with a minor (P.C. 266), AND child pornography (P.C. 311).        

 When does the person register?

The person is required to appear in person to register within 5 working days after his or her release from custody or on his or her probation.

 Who does the person register with?

The person must register as a sex offender with the local law enforcement agency of the city where he or she resides by providing his or her identifying information.

 When does the person renew registration?

The person is required to renew his or her registration annually, within 5 working days of the person’s birthday.  However, if the person is convicted as sexually violent predator, the person is required to renew his or her registration every 90 days.

 What happens when the person changes residence?          

The person is required to renew his or her registration every time that the person changes residence. The person must notify the previous registering agency and the new registering agency to the place where he or she is moving to. The notifications must be in writing and received within 5 working days of the person changing residence.

 What happens if the person fails to register?

If the person knowingly and willingly fails to register, he or she will face charges of violating the California Sex Offender Registration Act.  The conviction that the person will receive for this violation will depend on the registrable sex offense and the number of violations. 

If the person failed to register for a registrable misdemeanor and this is the person’s first violation, then the person will be convicted of a misdemeanor. However, if this is the second time the person violates registration or if the person failed to register for a registrable felony, then the person will be convicted of a felony. 

 What are the penalties for violating the California Sex Offender Registration Act?

A person convicted of a misdemeanor for failure to register as a sex offender will face a sentence of  up to 12 months in county jail. A person convicted of a felony for failure to register as a sex offender will face a sentence of up to 36 months in state prison. Remember that if you or a loved one is required to register as a sex offender, this is a life long obligation. It is imperative that you realize that any violation of the California Registration Act will be a continuing offense. What this means for you is that a failure to register or renew your registration over time may incur multiple violations that will result in numerous convictions. 

Do not allow this to happen, let our experienced California criminal law attorneys advise you.

If you have any questions about the California Sex Offender Registration, please feel free to contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

Monder Law Group - News

How to Restore Your Firearm Rights

Who does P.C. §12021.1 regulate?

Any person who has been convicted of specified crime, whether a misdemeanor or felony relating to violence, unlawful use of firearms, or who is addicted to the use of a narcotic drug.

What is prohibited under P.C. §12021.1?

A convicted felon is prohibited from owning, purchasing, receiving, possessing, acquiring or having control of a firearm or ammunition.

What are the legal ramifications of a convicted felon in possession of a firearm?

A convicted felon who owns, purchases, receives, or has in possession or under custody or control any firearm or ammunition is guilty of a felony crime.

What are the punishments for a felon convicted of a misdemeanor who is later found in possession of a firearm?

A person convicted of a misdemeanor who is later convicted of the crime of being a felon in possession of a firearm may face a sentence of up to one year in county jail or a fine of $1,000 or both.

What are the punishments for a felon convicted of a felony who is later found in possession of a firearm?

A person convicted of a felony who is later convicted of the crime of being a felon in possession of a firearm may face a sentence of sixteen months or two or three years in state prison.

When is a convicted felon informed about restrictions to possess a firearm?

A convicted felon receives written notice of the restriction on his or her right to posses a firearm at the same time that judgment is imposed.

How can a convicted felon verify eligibility to possess a firearm?

A convicted felon can pay $20 to obtain from the DOJ website a eligibility check to determine whether he or she is eligible to possess a firearm.

Can firearm privileges be restored to a convicted felon?

It depends on the original offense that the person was convicted for, which caused the person to loose his or her firearm privileges to begin with.

What offenses may prohibit restoration of firearms privileges?

A violent offense pursuant to P.C. §29905, an offense that involved the violent use of a firearm pursuant to P.C. §23515, an offense that involved assault with a firearm 245(a)(2), or two or more convictions for brandishing a weapon in an angry or threatening manner in any fight or quarrel pursuant to P.C. §417(a)(2).

Who is not eligible to have firearm privileges restored?

A person adjudicated to be mentally incompetent to stand trial; a person found not guilty by reason of insanity at trial; a mentally disordered sex offender, and a person convicted of an offense that involved the use of a dangerous weapon.

How are firearm privileges restored to a felon convicted of a wobbler crime?

A wobbler crime is an offense that may be prosecuted as either a misdemeanor or a felony. If the original offense is a felony that is considered a wobbler, then the person must petition that the felony be reduced to a misdemeanor. Next, the person will need to petition to have the charges dismissed in order to restore his or her firearm privileges.

How are firearm privileges restored to a felon convicted of a felony offense?

A convicted felon of a felony offense must apply for a Governor’s Pardon in order to try to have firearm privileges restored. This application is a two part process; the person must first apply and obtain a Certificate of Rehabilitation. If the Certificate of Rehabilitation is granted, it will serve as the application for a Governor’s Pardon. If the Governor’s Pardon is granted, it must declare to give FULL AND UNCONDITIONAL pardon to the convicted felon in order for the person to have his or her firearm privileges restored.

If you have any questions about how to restore your firearm rights contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

Monder Law Group - News

Petition For Factual Innocence

What is Factual Innocence?

Factual innocence is when no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made, the petitioner is in fact innocent.

What is a Petition for Factual Innocence?

It is a petition to seal a petitioner’s arrest record based on a finding of factual innocence.

How does Factual Innocence differ from Expungement?

A person petitioning for factual innocence has not been convicted of any crime and is requesting relief because he or she was wrongfully arrested. Whereas, a person applying for expungement was convicted of a crime and is requesting relief despite that conviction.

Who qualifies for relief under P.C. 851.8?

A person who was wrongfully arrested; a person who was arrested but no charges were ever formally filed; a person who was arrested and had charges filed but whose charges were dismissed. Also a person acquitted of the charges at trial, if it appears to the presiding judge that the defendant was factually innocent of the charge.

What is the difference between an acquittal of the charges based on P.C. 851.8 and an acquittal of the charges based on a jury’s finding of not guilty?

Under P.C. 851.8 a petitioner is acquitted based on a finding of the petitioner’s factual innocence whether before trial or after trial by the presiding judge. On the other hand, at the end of a jury trial, the defendant’s acquittal is based on the prosecution’s failure to meet their burden of proof and not necessarily because the defendant was found to be innocent.

Who bears the burden of proof?

The petitioner carries the burden of proof to establish that no reasonable cause exists to believe that the arrestee committed the offense. If the court finds that the petitioner has met this burden, then the burden of proof shifts to the respondent to show that reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made.

How does relief under P.C. 851.8 work?

The court will schedule a hearing to determine the factual innocence of the petitioner. At the time of the hearing, defense attorney will argue petitioner’s innocence by providing the court with declarations, affidavits, police reports, or any other relevant evidence. Based on the evidence that the court hears, it will either decide to grant or deny the petition for factual innocence. If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency which arrested the petitioner to seal their records of the arrest for three years from the date of the arrest and thereafter to destroy the records.

When should you file a Petition for Factual Innocence?

A petition for factual innocence can only be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. However, it is important to note that if you have already missed this deadline and can show good cause as to why, the two year restriction may be waived in the absence of prejudice.

What are the benefits of a Factual Innocence finding?

It will be as if the arrest never occurred. This means that any prospective employers running a background check will not be able to see any record of arrest or prosecution.

Who should you contact?                                                                

If you are the victim of a wrongful arrest and have reason to believe that you were accused of a crime that you did not commit, we urge you to contact Monder Law Group immediately. Our knowledgeable and experienced attorneys are ready to examine the specifics of your case; we will find the proof of factual innocence that we need to submit a motion before the Court for a declaration of  your innocence. Here, at Monder Law Group we are zealously committed to finding justice for those wrongfully accused, you can rest assured that we will not stop until we obtain an order for the sealing and destruction of any arrest records in your case.

If you have any questions about filing a petition for factual innocence in San Diego, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Defense Attorney

Monder Law Group - News

Governor Pardon

What is it?

It is a public record showing that the Governor of California has pardoned an applicant who has demonstrated exemplary behavior following their conviction. It restores to the applicant some of the rights of citizenship which were forfeited as a result of the conviction.

Who is eligible to apply?

A person convicted of a felony who has served a sentence in a California state penal institution, was discharged on completion of the sentence or released on parole, and has received a Certificate of Rehabilitation.

 What is the application process?

An applicant must first file for a Certificate of Rehabilitation, if the Superior Court issues this court order, then the certificate is forwarded to the Governor’s Office where it serves as both an automatic recommendation and an application to the Governor for a pardon. 

 How long must you wait before applying?

The required period of time an applicant must wait is ten years after being discharged from probation or parole, during these ten years the applicant must not have any criminal activity. 

What does it do?

It allows the applicant to serve on a jury trial, be considered for appointment as a county probation officer or state parole agent, and have the right to bear firearms restored, unless the applicant was convicted for a felony involving the use of a dangerous weapon.

 What does it not do?

It does not seal the applicant’s criminal record or expunge the record of conviction. It does not prevent the pardoned offense from being considered as a prior conviction, if the applicant is later convicted of a new offense. It also does not allow the applicant to answer “no record of conviction” in any employment applications. It is important to note that  Governor’s Pardon does not necessarily prevent deportation.

 Who reviews the application for the Governor’s Pardon?

The Governor’s Office receipt of a Certificate of Rehabilitation does not guarantee that a pardon will be granted. The Governor’s Office first must forward the application to the Board of Parole Hearings, who will then conduct an investigation and make a recommendation whether a pardon should be granted based on the findings of the investigation.

What does the investigation consist of?

It is a background investigation of the applicant, in which the Board of Parole Hearings may contact the District Attorney, the investigating law enforcement agency, and other people with relevant information on the applicant.

What happens after the Governor’s Pardon is granted?

The Governor’s Office will notify the California Department of Justice and the Federal Bureau of Investigations so that they may update their records on the applicant. The Governor’s Pardon will then be filed with the Secretary of State and reported to the Legislature as a public record.

If you have any questions about a governor pardon in California, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

Monder Law Group - News

Certificate of Rehabilitation

What is it?

It is a court order declaring that the applicant who was convicted of a felony is now rehabilitated.

Who is eligible to apply?

A person convicted of a felony who has served a sentence in a California prison or other state penal institution or agency; was discharged on completion of the sentence or released on parole or probation, upon successful termination; and has not been incarcerated in a state penal institution since his or her release. 

 What are the requirements of demonstrated rehabilitation?

An applicant must be able to provide the court proof that he or she has lived an useful, productive, and law abiding life following the conviction. 

 What are the residential requirements?

An applicant who was placed on parole must reside in California for three years prior to filing for a Certificate of Rehabilitation.

An applicant  who completed the sentence must have resided in California for at least five years prior to filing for a Certificate of Rehabilitation.

 When does the rehabilitation period for an applicant begin?

An applicant’s rehabilitation period begins from the moment he or she is discharged from incarceration or upon release on probation or parole. 

 How long must you wait before applying?

The required period of rehabilitation before filing a Certificate of Rehabilitation is the five years required for residency in California, in addition to any years ordered by the court if the applicant served consecutive sentences.

What does it do?

It declares the applicant rehabilitated, thereby enhancing employment opportunities and the possibility of becoming licensed by state boards.

 What does it not do?

It does not erase the felony conviction or prevent it from being considered a prior in a future separate criminal matter. 

It also does not allow the applicant to answer “no record of conviction” in any employment applications.

 Where is a Certificate of Rehabilitation filed?

The application must be filed in the a Superior Court of the applicant’s current county of residence. It is important to note that the applicant must also notify the District Attorney of the county in which the applicant was convicted.

 Who reviews the Certificate of Rehabilitation?

The District Attorney’s Office in the county of the applicant’s residence is responsible for reviewing the application. The District Attorney’s office will provide the applicant with a questioner and verify the information provided by conducting a background investigation.

 How long does the background investigation take?

The investigation can take anywhere from three to four months and it begins after the questioner is received.

 What does the background investigation consist of?

The investigation looks into the applicant’s family, residence, education, employment history, financial status, criminal and civil actions filed against the applicant.

 Who grants a Certificate of Rehabilitation?

After the District Attorney’s office submits the report of their investigation to the judge, the judge makes the ultimate determination.

 How does the Certificate of Rehabilitation and the Governor’s Pardon work?

The Certificate of Rehabilitation and Governor’s Pardon is a two part clearing process, the Certificate of Rehabilitation serves as an automatic recommendation and application to the Governor for a pardon.

If you have any questions about a Certificate of Rehabilitation, feel free to contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense