Archives for September 2017

Can I get a Felony Conviction Reduced to a Misdemeanor?

A felony conviction can have serious repercussions for employment, loans and grants and immigration. With a Proposition 47 Petition, you have a chance at getting your felony reduced to a misdemeanor.

  • Background on Proposition 47

California voters passed this proposition to allow people who had been convicted of certain felonies to have those felonies reduced to misdemeanors.

  • What are some of the types of felonies that work for a reduction under Proposition 47?
  • Certain felonies such as shoplifting, forgery, check fraud, theft , receiving stolen property where the amount was less than $950
  • Is there a deadline on when these petitions can be filed?
  • Yes, consult with your attorney on deadlines and filing requirements.  Typically, the petition must be filed in the original court where you were sentenced.
  • Who is not eligible?
  • If you have had a previous conviction for certain sex offenses (such as rape, child molestation) or certain violent crimes (such a murder, or attempted murder), then you would not be eligible to petition a court for resentencing under Proposition 47.
  • Will there be a hearing? 
  • A hearing is not mandatory, but may be involved.  If you are out of state, contact an attorney about a Proposition 47 reduction.
  • What are my chances?
  • The court will look at whether you satisfy the criteria and then grant the petition unless resentencing you would grant an unreasonable risk of danger to public safety.
  • How many other people have filed these petitions?
  • As reported by NBC Sand Diego back in 2014, thousands of Prop 47 Petitions have been filed.  With the deadline to file fast approaching, now is the time to make a decision if you have been considering filing a Proposition 47 Petition. (See http://www.nbcsandiego.com/news/local/Prop-47-Has-Immediate-Impact-on-SD-Judicial-System-Attorney-281711231.html)

Note:  This article does not list in its entirety the types of crimes for eligibility or ineligibility.  This article is not intended as legal advice.  Rather, it is informative about introductory information regarding Proposition 47 and interested parties are encouraged to seek legal advice from an attorney. 

Filed Under: Fairfield Lawyer, General

5 Essential Tips for Successfully Navigating a Divorce

Many people who go through a divorce in California have little or no experience with the legal system.  Divorce is a difficult process that will put a strain on you and your children, but this guide will help you keep on track and avoid some of the common pitfalls involved in a divorce.

  • Avoid making threats or reacting to threats.  A common temptation in divorce is to make threats such as “I’ll drag this out and make it as expensive as possible,” or “I’ll make sure you never see the kids again,”  or “I’ll quit my job so you’ll never get a penny,” etc.  These threats do no good and can do a great deal of harm. Making threats puts you in a negative light and can lead to sanctions from the court. If your spouse is making these threats, do not react to them.  Document the threats by taking note of what was said and in front of whom, and report this information to your attorney.
  • Keep focused on the important things – your children, your job, and your health.  The stress and time involved in a divorce can tear you away from your most important priorities, which are likely your children, your job and your health. Make a plan to stay focused on what you really care about. Focus on what you can do and not what you can’t do.  Make a schedule.  Get organized. Force yourself to keep doing the things that you need to do to survive.  Take time to exercise.  Guard your mental health.  The divorce can take over your entire life unless you take charge and make sure that the important priorities are not neglected.
  • Move forward.  Whether your strategy is to settle or to go to trial, make sure your case is moving forward.  The process of divorce is uncomfortable and expensive, so you want to discuss with your attorney how to keep things progressing.  Some vindictive ex’s may try to slow down the process as a revenge technique, so discuss with your attorney the various options that make sense to keep the process moving.
  • Know the strategy and the budget.  Some of the most important conversations you should have with your attorney will be about the strategy and the budget.  Don’t go into this war without a plan of attack.  Discuss your options with your attorney and evaluate the cost of different strategies to come up with a plan that is right for you. Each case is unique and the plan for your case needs to fit your needs and budget.
  • Don’t let emotions rule your decisions.  You are human, and your emotions will be running wild during a divorce. It’s ok to cry.  It’s normal to be angry or depressed. Be kind to yourself and don’t repress the gamut of emotions, but also make sure that you avoid making purely emotion-based decisions.  Talk to a trusted friend or family member. Make decisions when you are in a calmer frame of mind.  There are cases where parties spend money out of revenge.  Think about your divorce as a business, and look to have a return on your investment in legal fees.  To simply this concept: don’t spend $5 to win $1.
Filed Under: Divorce Lawyer, Fairfield Lawyer

Can I get a DUI Expunged in California?

If you have a DUI conviction on your record that is interfering with employment or perhaps immigration, you may be wondering if you can get a DUI expunged in California.  The answer is maybe.  There is not right to have a DUI expunged, but it is possible to have one granted under certain circumstances.  This article will walk you through some of the important questions, but consult with an attorney to find out if you can get your DUI expunged.

  • What is expungement?

California Penal Code 1203.4 lists the circumstances in which a defendant (the person who committed the crime) can have their offense dismissed and be released from the penalties resulting from the offense.

  • Do I have the right to have my DUI expunged?

No, you do not have the right to have a DUI expunged. The court has discretion, which means that the court can look at the circumstances and decide whether or not to grant your request.  This means that you have a chance, but there are no guarantees.

  • Should I petition the court now?
  • You have to be finished complying with all the conditions that were imposed upon you at sentencing.  This includes:
    • Fines have to have been paid.
    • Counseling completed.
    • Community service if applicable is done.
    • Competition of any probation.
    • Completion of any other requirement of the court.
  • You are not currently charged with, on probation for, or serving a sentence for another offense.
  • You did not commit new crimes while on probation.
  • What is the interest of justice that is considered by the court in determining whether to grant my petition? 
  • The interest of justice is not specific, but there are factors that weigh in whether a court will consider an expungement in the interest of justice:
    • The length of time since the DUI
    • Employment considerations
    • Family considerations
    • The circumstances of the DUI itself
  • What is the process?
  • You will likely want to hire an attorney to assist you with the paperwork.
  • You request a dismissal of your charge, which is called a petition for relief.
  • The prosecuting attorney is allowed a certain amount of time to respond.
  • What are the limits of what an expungement can do for me?

Getting your DUI expunged may help you in meeting your employment, licensing or educational goals.  However, getting the DUI expunged will not prevent your sentence from being enhanced in the event that you get a subsequent DUI in the future.  Also, it is rare that expungement lowers your insurance rates. Although your conviction has been dismissed, it may still be accessible through public records.

Filed Under: DUI

5 Things Not to Do in a Divorce

If you are going through a divorce, you want to avoid the mistakes and pitfalls that others have fallen prey to. In an ideal world, your ex is cooperative and willing to co-parent peacefully if children are involved. You may not be that lucky, though, and may have a controlling, cruel, or cheating ex. The following list of mindsets and behaviors to avoid applies equally, regardless of the type of ex you are dealing with, because this list will focus on you and your actions.  By putting your energy into yourself, the person that you can control, you will be empowered to make the most of a tough situation.

  • Don’t expect a clear-cut “win,” but expect a reasonable amount of success.  A divorce by its nature is the splitting up of a family and assets, so the concept of “winner take all” almost never applies. A reasonable expectation of success is for a fair allocation of time with the children and an equitable distribution of assets. You likely invested years and love into the marriage and may wish that the legal system were set up to exact vengeance on your spouse.  The court can’t give you back those years or sacrifices, and focusing on revenge will only allow your ex to steal more time and energy from your life.  Talk to your attorney about how a judge would perceive your circumstances and set achievable divorce goals.
  • Don’t fake the numbers.  In California, you will disclose assets, income, liabilities, debts, etc. Don’t mislead or fudge these numbers. The court has discretion to award the other party a greater amount if you are intentionally dishonest in the information that you provide. Your answers will likely be carefully scrutinized by your ex and their attorney, so make sure that you provide accurate information.
  • Don’t count out mediation.  You may want to have your day in court, but don’t let visions of tv legal drama playing out in the court room prevent you from making the decision to pursue mediation. Although mediation might not be the glamourous court hearing you were envisioning, it can often be a much more cost-effective and time-effective way of resolving issues in the divorce.
  • Don’t let your kids be second place. If you are creating a parenting plan, make sure that your kids and their individual needs are your first consideration. Each family is different. Consider each spouse’s ability to take children to school, lessons and activities. Think about the time in transportation. Consider the confusion and distraction your child may experience by living in two households. Many parents make the mistake of trying to make sure things are “equal” and “fair,” between the spouses, but they should also keep in mind what is best for the child.  It may be that having a little less quantity of time, but more quality of time with your child might be best.  It might be that sacrificing some of your scheduling preferences might help your child feel more comfortable with the arrangement. There is no single answer to this question, but make sure you evaluate your parenting plan with your children, and not yourself, at the center.
  • Don’t stay stuck in the past.  You rightfully feel disappointed and betrayed. You wonder why this happened to you. You think about the fights. You feel angry for the hurt and the loss. These are natural emotions that go along with a divorce, but don’t let the divorce define you. Don’t rob your happiness and future by continually replaying the past. A divorce is similar to a death of a spouse in many ways, and you have to let yourself mourn and then move on. Think about the freedom, the possibilities, the new experiences, the new people, and a new normal. Keep your thoughts disciplined to look forward to the future instead of dwelling on the past.
Filed Under: Divorce Lawyer