Certificate of Rehabilitation and Pardon

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Certificate of Rehabilitation and Pardon

Felony convictions where a term in state prison is imposed require professional attention by a lawyer skilled in expungements.

There are two ways that someone sentenced to state prison can obtain relief:

  1. the Certificate of Rehabilitation and Pardon, and
  2. the Direct Application for Pardon.

A full pardon, whether direct or through rehabilitation proceedings, restores all of the rights and privileges of which the person was deprived by reason of the conviction, with some exceptions. In addition, a pardon relieves a sex offender of the duty to register under Penal Code Section 290. A pardon does not automatically restore any license, permit, or certificate that had been taken as the result of the conviction.

A Governor’s pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony, or in some cases, for certain specified misdemeanor sex offenses. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following conviction.

Pardon applications will not be considered unless an applicant has been discharged from probation or parole for at least ten years and has not engaged in further criminal activity during that period. While the receipt of a Certificate of Rehabilitation will be considered in evaluating a pardon application, it is but one factor and is not the sole determinant. The ten-year rule may be waived in truly exceptional circumstances, if the applicant can demonstrate an earlier, specific need for the pardon.

Once the threshold criteria has been met, the application will be reviewed to determine whether the applicant has met the standards set forth in California Penal Code section 4852.05, which states, "During the period of rehabilitation, the person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land."

Certificate of Rehabilitation

Certificates of Rehabilitation are first sought from the trial court. If a certificate issues, the trial court recommends that the governor grant a pardon. The governor has discretion to grant or deny a pardon. The pardon may be granted without further investigation, except that a person twice convicted of felonies must also have the recommendation of a majority of the supreme court.

In order to obtain a Certificate of Rehabilitation, the applicant must be a California resident for at least three years before the filing of the petition. There is a period of rehabilitation that is required before filing, during which the person must lead an honest life, and be free from convictions. The amount of time varies, depending upon the underlying criminal conviction.

Dismissal of the underlying charges pursuant to Penal Code Section 1203.4 is not required before seeking a Certificate of Rehabilitation, so long as the person served a prison sentence. If probation was imposed instead of a prison sentence, dismissal must first be obtained, and the defendant must be free from felony probation.

A Certificate of Rehabilitation is a court order, which declares that a person who has been convicted of a felony is rehabilitated. If a petition for a Certificate of Rehabilitation is granted, it is forwarded to the Governor by the granting court and constitutes an application for a pardon.

The laws pertaining to the Certificate of Rehabilitation can be found in California Penal Code sections 4852.01 to 4852.21.

Generally, a person who has been convicted in California of a felony, or a misdemeanor sex offense specified in California Penal Code section 290, the accusatory pleading of which has been dismissed pursuant to Penal Code section 1203.4, may apply to the superior court in his or her county of residence for a Certificate of Rehabilitation, provided that he or she meets behavioral requirements and the applicable period of rehabilitation. (California Penal Code section 4852.06.)

An exception to this rule involves individuals convicted of the following Penal Code sections: 286(c), 288, 288a(c), 288.5, and 289(j). Effective January 1, 1998, AB 729 amended Penal Code sections 1203.4 and 4852.01 to prohibit these specified sex offenders from obtaining a Certificate of Rehabilitation. Such individuals are no longer eligible to receive a Certificate of Rehabilitation.

The granting of a Certificate of Rehabilitation relieves some offenders from the sexual offender registration requirement of Penal Code section 290. (See California Penal Code section 290.5 for a list of persons not eligible for relief from registration.) To determine your 290 registration status, contact an attorney that knows the law in this specialized area.

Certificate of Rehabilitation & Pardon

Felony convictions where a term in state prison is imposed require professional attention by a lawyer skilled in expungements. There are two ways that someone sentenced to state prison can obtain relief:(1) the Certificate of Rehabilitation and Pardon, and(2) the Direct Application for Pardon.

Who may apply?

Persons who are eligible to apply for a Certificate of Rehabilitation include those who:

  • Were convicted of a felony and served the sentence in a California state prison; and
  • Were discharged on completion of the term or released on parole prior to May 13, 1943; and
  • Have not been incarcerated in a state penal institution since release; and
  • Present satisfactory evidence of three years residence in California immediately prior to the filing of the petition.

or

  • Were convicted of a felony, or a misdemeanor sex offense specified in Penal Code section 290, the accusatory pleading of which was dismissed pursuant to Penal Code section 1203.4; and
  • Have been discharged or released from custody on probation; and
  • Have not been incarcerated in any penal institution, jail or agency since the dismissal of the accusatory pleading; and
  • Are not on probation for the commission of any other felony; and
  • Present satisfactory evidence of five years residence in California immediately prior to the filing of the petition.

or

  • Were convicted of a felony on or after May 13, 1943; and
  • Were sentenced to state prison or other institution or agency; and
  • Were discharged from custody or released on parole; and
  • Present satisfactory evidence of five years residence in California immediately prior to the filing of the petition.

Persons who are INELIGIBLE to apply for a Certificate of Rehabilitation include:

  • Those who do not meet the above requirements; or
  • Those who were convicted only of misdemeanors (except those convicted of a misdemeanor sex offense specified in Penal Code section 290, which was dismissed pursuant to Penal Code section 1203.4); or
  • Those who were convicted of Penal Code sections 286(c), 288, 288a(c), 288.5, or 289(j); or
  • Those who are serving a mandatory life parole; or
  • Those committed to prison under a death sentence; or
  • Those persons in the military service.

When to apply?

Persons eligible to petition for a Certificate of Rehabilitation may file the petition once the period of rehabilitation has passed. The period of rehabilitation begins to run upon the discharge of the petitioner from incarceration due to the completion of the term, or upon release on probation or parole.

The period of rehabilitation constitutes five years residence in California, PLUS:

  • Four years in the case of persons convicted of violation of California Penal Code sections 187, 209, 219, 4500, or 12310, or Military and Veterans Code section 1672(a), or of committing any other offense which carries a life sentence; or
  • Five years in the case of any person convicted of any offense or attempted offense for which sex offender registration is required pursuant to P.C. 290, except for convictions for violations of subdivision (b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or 314. For those convictions, two years shall be added to the five years imposed by this section.
  • Two years in the case of any persons convicted of any offense not listed above and which does not carry a life sentence; or
  • The number of additional years ordered by the trial court hearing the application for the Certificate of Rehabilitation in the case of a person serving consecutive sentences.

Rescission of Certificate of Rehabilitation

A district attorney in either the county of conviction or the county of residence may petition the superior court to rescind a certificate, if it was granted for any offense specified in California Penal Code section 290.

Procedures for Applying

The petition must be filed in the superior court of the petitioner’s current county of residence. (California Penal Code section 4852.06.) The petitioner is required to provide notice of their filing to the district attorney in their county of residence, as well as to the district attorney of each county in which the petitioner was convicted of a felony, and to the Governor’s office.

All felony convictions, or misdemeanor sex offenses specified in Penal Code section 290, for which the accusatory pleading was dismissed pursuant to California Penal Code section 1203.4, should be included. This notice must indicate the date and time of the hearing and must be sent to the district attorneys at least 30 days before the hearing.

Each person who is eligible to initiate the Certificate of Rehabilitation proceedings is entitled to receive assistance in processing the petition from all rehabilitative agencies, including adult probation officers of the county, and state parole agents; and, in the case of persons under the age of 30, assistance can be obtained from the Youth Authority. During the court proceedings, the petitioner may be represented by counsel of his or her own choosing.

Once a petition is filed, the court will schedule a hearing to consider the petition. Prior to the hearing, the court may require an investigation by the district attorney of the county of residence of any and all matters pertaining to the petitioner.

At the hearing, the court may require testimony and the production of records and reports pertaining to the petitioner, including information about the conviction offense, and his or her conduct both while incarcerated and since release on probation or parole.

If, after the hearing, the court finds that the petitioner has demonstrated rehabilitation and fitness to exercise all political and civil rights, the court may make an order declaring that the petitioner is rehabilitated. A certified copy of the Certificate of Rehabilitation is then transmitted to the Governor and becomes an application for a pardon.

Upon receipt of the application, the Governor may request that the Board of Prison Terms conduct a further investigation. Following a review, the Governor may then grant the pardon. If the petitioner has been convicted of more than one felony in separate proceedings, the California Supreme Court must also approve the grant of a pardon.

Direct Pardon Application

Direct pardons refer to requests for pardon made directly to the Governor. The governor has total and complete discretion to grant or deny a pardon. The pardon may be granted without further investigation, except that a person twice convicted of felonies must also have the recommendation of a majority of the supreme court to obtain a pardon.

A direct pardon is usually sought by persons who are not eligible for a certificate of rehabilitation, such as nonresidents and misdemeanants.

Any person who has been convicted in California of a felony, or a misdemeanor sex offense specified in Penal Code section 290, the accusatory pleading of which has been dismissed pursuant to Penal Code section 1203.4, may apply to the Governor for a pardon. Applications for pardons may be made in one of two ways: either by way of an application for a Certificate of Rehabilitation, or through a direct traditional pardon application. The procedure utilized will depend on the circumstances of the applicant, and it is important to consult with a lawyer to determine which is appropriate in any given case.

Once an application for a pardon is filed under either procedure, the Governor reviews the case. The Governor has complete discretion in deciding whether to grant a pardon, and a pardon is not granted to every person who applies.

Pardon investigations are conducted for the Governor by the California Board of Prison Terms, Investigations Division.

The traditional pardon procedure is available to those persons who are ineligible to petition for a Certificate of Rehabilitation. This procedure is used primarily, although not exclusively, by California ex-felons who reside out-of-state and are therefore unable to satisfy the residency requirement. The traditional pardon procedure is also available to those individuals who have convictions for Penal Code sections 286(c), 288, 288a(c), 288.5, and 289(j). The traditional pardon procedure is covered by California Penal Code sections 4800-4813.

Applicants for a traditional pardon must write directly to the Governor’s Office. It is highly recommended that a pardon applicant have the services of an experienced lawyer to ensure that all of the procedural requirements are met, and to increase the chances of success. At a minimum, the letter should include the following:

  • Why a pardon is desired or needed;
  • Date and circumstances of all felony offenses of which the applicant was convicted;
  • Dates the applicant was received in prison and released from custody or placed on probation;
  • Name of the applicant, including any aliases; date of conviction; county and case number of conviction, if known; prison number; name of parole agent; current address and telephone number; and
  • A brief, general statement of employment and activities since conviction or release from custody.

Upon receipt of the letter, the Governor’s Legal Affairs staff will review the information. After the review, the Legal Affairs Office may send the Application for Executive Clemency and Notice of Intention to Apply for Executive Clemency forms to the applicant.

The applicant should complete the Application for Executive Clemency form and have it notarized. In addition, the Notice of Intention to Apply for Executive Clemency should be served on the District Attorney of each county in which the applicant was convicted of a felony, at least ten days prior to the application.

The Acknowledgment of Receipt portion of the notice form must be completed and signed by the District Attorney. Both the application and the completed notice must then be submitted to the Governor’s Office, along with a full statement of any compensation paid to any person for assisting in the procurement of a pardon.

Once the formal application is returned, the Governor refers it to the Board of Prison Terms for investigation. After the investigation, the case is presented to the Executive Board for a decision as to whether to recommend to the Governor that a pardon be granted. The applicant is notified of when the Board will be considering his or her case, and he or she is given the opportunity to forward any additional information, if desired. Pardon applicants do not attend the pardon consideration meeting. Following the meeting, the application, investigation report, and the Board’s recommendation are sent to the Governor. Notification of the meeting result is also sent to the applicant.

The Governor then reviews all of the information and decides whether to grant a pardon. If the applicant has been convicted of more than one felony in separate proceedings, the California Supreme Court must also approve the grant of a pardon.

There is no requirement that the Governor issue a pardon to an applicant, and the length of time needed for the completion of the pardon process cannot be predicted.

Effect of a Pardon

When a Certificate of Rehabilitation or pardon is granted, the California Department of Justice and the Federal Bureau of Investigation are notified. These agencies’ records are then updated to show that a Certificate of Rehabilitation or a pardon has been granted in regard to the conviction.

A pardon is also filed with the Secretary of State, reported to the Legislature, and becomes a matter of public record. Although no effort is made to publicize the pardon application or issuance, there is no guarantee that the issuance of a pardon to a particular person will not become known to the public.

Restoration of Rights

The granting of a pardon entitles the applicant to exercise additional civil and political rights of citizenship. The most frequent reasons people apply for a pardon are for personal satisfaction, for licensing or bonding purposes, and to restore firearms privileges. Another frequent reason is to enhance employment opportunities, even when no legal disability exists.

A pardon does not seal or expunge the record of the conviction. (California Penal Code section 4852.17.) Prior convictions may be considered after the granting of a pardon, if the person is subsequently convicted of a new offense.

A person who has been pardoned cannot state that he or she has no record of arrests or convictions. The person can state that he or she has been convicted and has been pardoned.

An ex-felon becomes eligible to vote after being terminated from probation or discharged from parole. (California Constitution, article 11, section 4.) A pardon is not necessary to be eligible to vote.

A person who receives a pardon may serve on a trial jury.(California Code of Civil Procedure section 203(a)(5) and California Penal Code section 4852.17.)

An ex-felon who receives a full and unconditional pardon can be considered for an appointment to a peace officer position as a county probation officer or state parole agent, but cannot hold other peace officer positions. (California Government Code section 1029.)

A person convicted of a felony cannot own, possess, or have access to any type of firearm, including a rifle or shotgun. (California Penal Code section 12021.) However, if a full and unconditional pardon is granted by the Governor, the person pardoned may own and possess any type of weapon that may lawfully be possessed and owned by other citizens in California. The Governor cannot restore firearms rights to a person who has been convicted of any offense which involved the use of a dangerous weapon.

Pardons for out-of-state residents must specifically state that rights pertaining to firearms are restored. A California pardon does not necessarily permit the possession of weapons under the laws of another state or the federal government. The law pertaining to the restoration of rights to own and possess firearms can be found in California Penal Code section 4854.

If you have not obtained a pardon restoring your firearms rights, and you have access to a firearm of any type, you are in violation of the law. For example, having a firearm registered to a spouse, but readily available to you in your place of residence, is a violation.

The granting of a pardon does not prevent some licensing agencies from considering the conviction that has been pardoned in its determination of whether a license to practice certain professions should be granted or restored. The law pertaining to the effect of a full pardon on licensing boards can be found in California Penal Code section 4853.

A California pardon does not apply to convictions suffered in another jurisdiction. A person convicted in another state or in a federal court must apply for a pardon to the other state or the federal government. It is best to consult with a lawyer familiar with pardons in such a case.

For more information about expungement, please feel free to contact attorneys at the Kavinoky Law Firm.

Felony Reduction

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Post-conviction Relief: Reduction of Felony to Misdemeanor (PC 17)

You may worry that your California felony conviction will follow you throughout your life, but that’s not necessarily the case. It is sometimes possible to reduce a felony to a misdemeanor through a process known as post-conviction relief. The skilled defense lawyers of The Kavinoky Law Firm will thoroughly evaluate your case to determine whether it may be possible to have your felony conviction reduced to a misdemeanor.

Post-conviction relief is made possible by a series of statutes in the California Penal Code that allow individuals to distance themselves from their mistakes. California Penal Code 17(b) allows the reduction of felony “wobblers” to misdemeanors so that they can then be dismissed and expunged.

The California Penal Code distinguishes all crimes as either misdemeanors or felonies, and in some cases, both. “Wobblers” are offenses that can be charged either way. Misdemeanors are considered less serious, so these offenses generally include limited time in county jail, fines and probation. Felonies, on the other hand, include terms in prison. Felony wobblers are often punished less severely than standard felonies – the defendant may receive time in county jail and probation versus prison and parole. The basic difference is in the punishment that can be imposed.

If you were convicted of a California wobbler offense that was charged as a felony but carried misdemeanor punishment, a motion can later be made under California Penal Code 17(b) to reduce the felony to a misdemeanor. A misdemeanor not only reads better than a felony, but it is also eligible for expungement under Penal Code 1203.4. But when the offense is punishable only by state prison, it is not reducible, and will likely require a

Misdemeanor

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Expungement of California Misdemeanor Cases

If you’ve been convicted of a misdemeanor or felony in California, you may fear that your criminal record will follow you throughout your life and bar you from employment, housing, education and other opportunities. However, it’s often possible to wipe the slate clean through a process called expungement. The skilled lawyers of The Kavinoky Law Firm are experienced in every aspect of California expungement and other forms of post-conviction relief, and will fight hard to clean up any individual’s criminal record.

California recently passed new laws that change the way expungements are granted. Effective Jan. 1, 2008, you must have a formal hearing to have a criminal conviction expunged. While in the past you were required only to meet certain requirements, now a judge has the discretion to decide whether expunging your conviction is in the best interests of justice.

However, expungement of California misdemeanor offenses is still possible if you meet certain criteria and have a successful court hearing. You must have completed all of the terms of your sentence and all requirements of probation. If you weren’t placed on probation, at least one year must pass between the date of conviction and the date that expungement is requested. You cannot have any criminal charges pending or be on probation for another offense.

Certain offenses cannot be expunged, including most sex crimes and violations of California Vehicle Code Section 42001(b) which includes sections 2800, 2801 and 2803.

If all of the requirements listed above are met, the process of expunging a California misdemeanor conviction is as follows: Your attorney files a petition with the original court of conviction to have the charges dismissed, and a hearing is held. If the hearing is successful, you will be allowed to withdraw your guilty or nolo contendere / no contest plea. If you were convicted by a judge or jury, the guilty verdict is set aside. When that occurs, the original charges are dismissed and you no longer have a conviction on your record.

Although expunging a California misdemeanor conviction has enormous benefits, there are also limitations. You must disclose expunged offenses in certain circumstances, including applications for public office or any state license, such as real estate, stock broker, doctor, lawyer, etc., or contracting with the California State Lottery.

Other circumstances not specifically mandated by law may also require disclosure, such as applications to become a police officer. In addition, restrictions such as firearm possession or requirement to register as a sex offender will still apply.

Despite the limitations, the benefits of expunging a California misdemeanor conviction are enormous. Having a clean criminal record eliminates hurdles to many opportunities, particularly employment. Perhaps even more valuable is the peace of mind that comes from rectifying a past mistake. To learn more about expungement or other forms of post-conviction relief, contact The Kavinoky Law Firm today for a free consultation.

Introduction to Expungement

Posted by Darren Kavinoky on

If you’ve been convicted of a criminal offense, you have a criminal record. In the past, only those with authorization could view your criminal record, but times have changed. Technology has blurred the gap between public and private, and background checks are becoming more and more common. Unfortunately, almost anyone can access your criminal record.

Because it’s now extraordinarily easy to access your criminal record, expungement or another form of post-conviction relief is critically important. Expungement works like cleaning up a credit report. A successful expungement means that the conviction is removed from the record. The knowledgeable expungement lawyers of The Kavinoky Law Firm can evaluate your California criminal conviction to determine whether post-conviction relief may be an option.

Expunging a criminal record in California once required that you simply fulfill the terms of your sentence and probation and petition the court to allow expungement of your conviction. However, a new California law effective Jan. 1, 2008 now requires that you have a formal court hearing so that the judge can consider your expungement petition. The judge now has the discretion to decide whether expunging your record serves the interests of justice.

To facilitate a successful expungement hearing, you may have to call witnesses, file declarations, provide the court with information about you and your particular circumstances, and convince the judge why your good conduct and reform justify expunging the conviction.

It’s still entirely possible to expunge your California criminal conviction, and the benefits of doing so are significant. Essentially, the judge dismisses your case after the fact, even if you originally pled guilty. In these cases, the guilty plea is withdrawn and the case is dismissed. On your criminal record, expunged offenses are listed as “dismissed.”

While expungement offers the most relief, it is not an eraser, and relief from disclosure is limited. Also, expungement is not available in all cases. While it is possible to expunge some felonies, expungement is generally limited to misdemeanor offenses, where the probationary period has ended. However, an experienced criminal defense attorney can assist with getting probation terminated early.

Common situations where expungement is usually granted include driving under the influence, drug possession, reckless driving, and other misdemeanor offenses. Most employers are prohibited from asking about both arrests that did not result in convictions, and expunged offenses. However, there are limits on expungement relief, including several situations that require mandatory disclosure of expunged offenses.

Still, the benefits of expungement far outweigh the limitations. While expungement is most commonly considered for purposes of future employment, the psychological benefits should not be overlooked. Knowing that a prior criminal conviction is out there can be unnerving. While hiring a good criminal defense attorney to help resolve matters initially is always encouraged, there’s no reason to suffer needlessly from a prior conviction. Help is available. In some cases where expungement isn’t an option, alternatives such as a Certificate of Rehabilitation or a pardon may be available.

For a free-of-charge preliminary evaluation on whether your offense can be expunged, please contact a skilled criminal defense attorney at The Kavinoky Law Firm. We have offices throughout California and are extremely experienced in expungement and post-conviction relief.

Federal Crimes

Posted by Darren Kavinoky on

The vast majority of criminal offenses are prosecuted in state superior courts. In California, many offenses fall under the jurisdiction of state courts, including most DUI / DWI offenses, drug crimes, domestic violence offenses, assaults, sex crimes, and homicides. However, certain crimes are prosecuted in federal court. Below are examples of Federal Crimes.

Federal crimes are, by definition, serious offenses that carry severe consequences, so it’s critical to have a top defense lawyer fighting for your rights. If you’re accused of committing a federal crime in Los Angeles, Riverside, San Bernardino, San Diego, Orange or Ventura counties, or anywhere in California, you need expert legal help. The experienced California Federal Crimes defense attorneys of The Kavinoky Law Firm will fight aggressively for your rights in federal court and work to shield you from any adverse repercussions.

There are several factors that determine whether an offense will be prosecuted in state or federal court. The first is the nature of the offense itself. Tax evasion and mail fraud, fall under the exclusive control of the federal government and thus will be pursued as a federal offense.

Other offenses that would normally be pursued in state courts are prosecuted as federal crimes because the defendant is alleged to have crossed state lines in the commission of the offense. Offenses such as kidnapping, murder, rape and child molestation are examples of crimes that can be pursued in federal court if, for example, the defendant is accused of traveling from California to another state during the commission of the crime.

Drug trafficking is commonly pursued as a federal crime under the authority of the Commerce Clause of the U.S. Constitution. Federal drug offenses generally carry far greater repercussions than the same offenses pursued in state courts.

Any offense that is committed in a location under the exclusive control of the federal government will also be pursued in federal courts. The District of Columbia, national parks, military bases, and U.S. territories such as Puerto Rico and Guam, are examples of locations where even relatively minor offenses such as DUI / DWI, will be pursued as federal crimes. Also, any offense committed in a federal courthouse or prison or aboard an aircraft or oceangoing vessel will be prosecuted in federal courts.

Federal crimes often carry far more severe consequences than similar offenses prosecuted in state courts. Also, if you are sentenced to federal prison, you may be sent to a facility much farther away from your home than a defendant sentenced to state prison.

Fortunately, it’s possible to aggressively fight federal criminal charges and create reasonable doubt of your guilt. The experienced California Federal Criminal defense attorneys of The Kavinoky Law Firm have the skills needed to effectively fight your federal charges and protect your rights. To learn more about aggressive defenses to federal crimes in California, contact us today for a free consultation.

Firearm Laws and Firearm Offenses

Posted by Brianna Wilkins on

The list of weapons that are not allowed to be possessed, manufactured, imported or sold in California are numerous, and are all mentioned in the Penal Code. The list is as follows: “Any cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains or consists of any flechette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice hand grenade or metal replica hand grenade, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.”

There are some exceptions to these rules. For example, short-barrel shotguns may be manufactured for use by a police agency. Nunchaku can be possessed at a licensed school for self-defense. There is also allowance for the possession of antique weapons. The law has common sense protections, and a qualified attorney, who is knowledgeable in the field of criminal defense, can help classify the exceptions for a client being charged with possession of firearms.

When a person has been previously convicted of murder or voluntary manslaughter, mayhem, rape, sodomy by force, oral copulation by force, lewd acts on a child under the age of 14, kidnapping, robbery, or almost any other felony, that person is guilty of a felony and has this on his or her record. Furthermore, if a person has a previous conviction and is found in possession of a firearm, they will be facing an automatic six months in county jail as a condition of probation or of a suspended sentence.

A person who has been convicted of domestic violence, or who has a restraining order against him or her, may not possess any firearms. If a person does own firearms, they must be sold or turned in to the authorities for a predetermined period of years. It is important for an individual who is accused of domestic violence or who is the potential subject of a restraining order, to seek competent legal counsel to defend against such actions and avoid the frustrations of being subject to extra restrictions.

In Los Angeles, one often hears of individuals discharging firearms from their vehicles. The legislature has reacted to the fear that these violent acts instilled in people, and subsequently added additional stiff penalties for those who discharge a weapon from a vehicle in the state of California. Any person who has the intent to inflict great bodily injury or death, and any person who does inflict great bodily injury or death by firing a weapon from a motor vehicle in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in state prison for 5, 6, or 10 years.

If you or someone you know has been arrested on charges related to firearms crimes, do not hesitate in seeking a free consultation and case evaluation from the experienced attorneys at The Kavinoky Law Firm.

REAL ESTATE FRAUD / BANK FRAUD / MORTGAGE FRAUD

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REAL ESTATE FRAUD / BANK FRAUD / MORTGAGE FRAUD

In the wake of America’s mortgage crisis, federal and state officials are pouring vast resources into prosecutions of real estate, bank, and mortgage fraud. Authorities are under enormous pressure to arrest, indict, convict, and ultimately sentence individuals involved in real estate, and this trend will likely continue for several years to come.

Fortunately, the experienced California defense lawyers of The Kavinoky Law Firm are here to help. A skilled California attorney from The Kavinoky Law Firm can mount an aggressive defense to any real estate, mortgage or bank fraud charge.  We stand strong between the accused and the government and popular opinion.

Authorities focusing on alleged frauds and schemes in the real estate business sometimes sweep up innocent victims in their net.  Recent financial schemes victimize individuals and businesses, including low-income families lured into home loans they cannot afford, legitimate lenders saddled with over-inflated mortgages, and honest real-estate investors fleeced out of their investment dollars.  Officials are relentless in their pursuit of indictments in this area of the law, and they simply “follow the money.”  Some common real estate fraud schemes include:

  • Property Flipping — A buyer pays a low price for property, and then resells it quickly for a much higher price. This is perfectly legal unless it involves false statements to the lender or another type of fraud.
  • Two Sets of Settlement Statements — One settlement statement is prepared and provided to the seller accurately reflecting the true selling price of the property. A second fraudulent statement is given to the lender showing a highly inflated purported selling price. The lender provides a loan in excess of the property value, and after the loans are settled, the proceeds are divided among the conspirators.
  • Fraudulent Qualifications — Real estate agents, loan officers, and others assist buyers who would not otherwise qualify by fabricating their employment history, credit record, or income.  This is perhaps the most common type of real estate fraud currently under investigation.

The income earned from these types of real estate fraud schemes is often laundered to hide the money from the government.  Money laundering is simply a process of trying to make illegally earned income appear to be legitimately earned.  IRS and FBI Agents follow the money and collect evidence to prove applicable tax and/or money laundering violations.

Once they have obtained the evidence, the agents forward their investigation to the Department of Justice for criminal prosecution.  Even if a criminal investigation is not warranted, the government can take civil action.  For example, each year the IRS audits thousands of tax returns involving individuals and entities associated with the real-estate business.

Money-Laundering and Tax Crimes – Individuals targeted in real estate fraud investigations invariably find themselves accused money laundering and tax crimes.  Authorities will move quickly to seize assets; order assets to be forfeited; freeze bank accounts; and attempt, quite simply, to put the accused individual completely out of business.  Keep in mind that all this occurs before a finding of guilt by either a judge or jury.

Don’t let this happen to you.  If you are being investigated or if you or a loved one has been formally charged with any sort of real estate crime, call an experienced attorney from The Kavinoky Law Firm immediately.  Once we receive your case, our team of lawyers and staff will go to toe with the government on your behalf and fight for your rights.  If you’re facing a charge of real-estate fraud, money-laundering, bank fraud, or mortgage fraud, contact a knowledgeable California attorney from The Kavinoky Law Firm today for a free consultation.

California Homicide Attorney and Murder Defense

Posted by Brianna Wilkins on

Homicide is broadly defined as the killing of one human being by another. Homicide is a class of crimes that all involve the killing of one person by another, but are distinguished by the circumstances involved in the particular act of killing. If you are accused of any form of homicide in California, it is in your best interest to immediately contact a defense attorney with the experience and knowledge to provide the most vigorous defense possible.

Murder with Special Circumstances is a situation that exists where the death penalty is an option as a punishment for a defendant. There are a number of reasons why the death penalty could attach. Some of the reasons would be multiple murder victims, terrorism, murder to prevent one’s arrest, or the murder of a witness, judge, prosecutor, or police officer.

Murder is a form of homicide committed with malice aforethought. Malice aforethought has various definitions, all of which relate to the state of mind of the person who commits murder. Those definitions are:

  • intention to cause grievous injury and death resulted;
  • conduct with a “depraved heart” showing lack of care for human life;
  • or intent to commit any felony whatsoever;

Murder in the first degree is committed when there is an unlawful killing of a person with malice aforethought and the homicide was premeditated. Premeditation is key to a prosecutor’s case of murder in first degree. Premeditation can exist where there have been months of planning or when a split second decision to kill has been made. All that is required is that a person decides to kill and then they kill. It doesn’t matter how much time does or does not elapse between the decision to kill and the act that kills. A qualified attorney will be required to successfully defend a murder charge.

Murder in the second degree also requires malice aforethought but it does not require premeditation. Therefore, murder in the second degree usually exists where it can be shown that a person did not have the necessary mental state for premeditation but did act intentionally nevertheless. In California there are three theories of second degree murder, and it takes an experienced criminal defense lawyer to know the differences. The first theory is unpremeditated murder with express malice. The second theory of murder in the second degree is the unlawful killing of a human being when the killing resulted from an intentional act, the natural consequences of the act are dangerous to human life, and the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. The third theory of second degree felony murder is the unlawful killing of a human being, whether intentional, unintentional or accidental during the commission of a crime if the perpetrator had the specific intent to commit that crime.

Homicide can also consist of manslaughter, and manslaughter can be broken down into voluntary manslaughter, involuntary manslaughter, and vehicular manslaughter. A homicide is considered manslaughter when there is a killing of one human being by another but malice is not present.

Voluntary manslaughter is a murder that is generally committed “in the heat of passion” or as “imperfect self-defense.” The judicial definition of voluntary manslaughter is an unlawful killing that is committed without malice but with a conscious disregard for life.

Involuntary manslaughter exists when a person commits an unlawful killing but does not intend to kill and does not act with the conscious disregard for human life. An example of involuntary manslaughter would be if an individual punched somebody in the face just once and that person died. If the punch to the face was not intended to kill, there is no intent to kill, and because the punch was not meant to kill, there was no conscious disregard for human life.

The last category of manslaughter is vehicular manslaughter. Vehicular manslaughter exists when a person has acted with gross negligence and that negligence results in the death of another. An example of vehicular manslaughter is if a person got behind the wheel of a car and drove that car as fast as they could without regard to any traffic signs and slammed into another car killing the driver of the other car.

If you have been arrested on homicide charges, you need an attorney who has experience in defending these charges. Do not hesitate to call today for a free case evaluation from The Kavinoky Law Firm.

Identity Theft

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identity theftTheft laws in California are a broad class of crimes. Included within the definition of theft is identity theft (also known as stealing someone’s identity). In many instances, this crime is committed on the Internet, or it can happen by digging through documents in a trash can. In some circumstances, someone can intercept a credit report of another and get personal information about that person’s finances. Because of the flow of personal information in our society, identity theft is becoming one of the fastest growing crimes in this country. In fact, many times this crime is committed by a group of fraudulent actors who work together to steal personal information. (Sometimes these groups are called crime rings.)

Identity theft involves acquiring key pieces of someone’s identifying information, such as name, address and date of birth, bank account numbers, health insurance identification number, social security number and mother’s maiden name. This information enables the identity thief to commit numerous forms of fraud that include, taking over the victim’s financial accounts, opening new bank accounts, purchasing automobiles, applying for loans, obtaining credit cards, using social security benefits, renting apartments and establishing services with utility and phone companies.

California Penal Code Section 530.5 defines identity theft as using information “for any unlawful purpose” including obtaining “credit, goods, services or medical information” in someone else’s name without that person’s permission.

This means that if you use someone else’s identity to avoid an arrest or you give someone else’s identity during an arrest; if you attempt to obtain a credit card in someone else’s name; if you attempt to attain someone else’s medical records using that person’s name; or if you attempt to buy something on the Internet while posing as another person: you can be charged with identity theft.

Stealing a person’s identity is a serious crime in the state of California. In fact, identity theft can be charged as either a misdemeanor or a felony. Such crimes that can be duly classified are called “wobblers.” If you are charged with misdemeanor identity theft, you can be punished with up to one year in county jail. If you are charged with felony identity theft, you can be punished with a sentence in state prison. In the case of a wobbler crime, such as identity theft, it is up to the prosecutor to decide which charge the defendant will face. If you are convicted of stealing someone’s identity, the judge will determine your sentence based on the misdemeanor or felony nature of the charge.

In addition to jail and/or prison sentence, identity theft can be punishable by a fine of up to $10,000.

If you have been arrested for identity theft or using someone’s information to obtain credit card fraud, it is imperative that you speak with a California defense attorney who has experience defending these types of charges. There is hope when facing a misdemeanor or a felony identity theft charge, but you must be proactive. Speak with and hire a lawyer who understands the laws and understands you.

California Immigration Consequences Of Criminal Cases

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A California criminal conviction is a serious matter for anyone, but can be especially devastating for legal or undocumented immigrants. You can be deported or have your visa or green card revoked if you are convicted of a crime. Because the consequences of a California criminal conviction are especially severe for immigrants, it’s critical to have a top defense lawyer on your side ensuring that your rights are protected. The skilled California defense lawyers of The Kavinoky California Immigration Lawyers have the advanced knowledge needed to protect your rights and your freedom if you’re facing any type of criminal charge.

The best way to avoid any type of immigration action as a result of a California criminal charge is to prevent a criminal conviction in the first place. The top California defense lawyers of The Kavinoky Law Firm can thoroughly analyze your criminal case to determine the most promising defense strategy, and take aggressive action to strengthen your defense.

Not every criminal conviction will result in deportation or revocation of a visa or green card, so if you’re facing immigration issues, it’s critical for your California defense lawyer to thoroughly research the charges you face and your options to determine the best course of action.
In some cases, a skillfully negotiated plea bargain is the best option in a California criminal case where immigration issues exist. If the case as charged would result in deportation if you’re convicted, it may be possible for your California defense lawyer to negotiate a plea bargain that allows you to plead guilty to a lesser charge that doesn’t carry immigration consequences.

If you have already pleaded guilty to a California criminal charge and learned that it will lead to your deportation, it may be possible to withdraw your guilty plea based on the argument that you did not understand the consequences of your guilty plea. If you are allowed to withdraw your guilty plea, your California criminal case will start over again, and you’ll have to defend yourself against the charges you face.

Since 9/11, immigration policy in the United States has become progressively harsher. More crimes are falling into the category of deportable offenses, and deportation hearings are taking place regularly. Given the current national security climate, it is crucial to hire an attorney who can stand up for you and illustrate that you are not the person or the type of person that should suffer deportation. It takes experience and specialized knowledge to deal with immigration consequences of criminal convictions.

The consequences of a criminal conviction can be extremely harsh for immigrants, but the top California Immigration Lawyers of The Kavinoky Law Firm can help. Our experienced defense attorneys are ready to thoroughly analyze your case to determine the best course of action and fight for your rights. Contact a knowledgeable California defense attorney today at 1-800-NO-CUFFS for a free consultation.