ExpertLaw.com Forums

Challenge for Petition of Actual Innocent Within Statute of Limitation

Printable View

  • 06-13-2019, 07:51 PM
    fly-fish
    Challenge for Petition of Actual Innocent Within Statute of Limitation
    Hi everyone,
    I am sorry to disturb you again for this issue. My friend was arrested two years ago as felony, and now faces a big challenge for the petition of factual innocence:

    here is the whole story:

    1. On 08-01-2017, my friend was arrested in California; he was taken to jail, got finger-prints and et.al. He spent one day there.
    2. He went out of jail after paying the bond Co..
    3. On the bail Receipt it says: 273.5(A) PC …Court: xxxxx. Felony Arr. Court date: 08-07-2017 13:30…
    4. Then he hired a lawyer to handle this case. Several days later, the lawyer said, the case was not filed. So he did not have to show up in the court.
    5. Several months later, the lawyer got the certificate of release for him. The certificate says according to Penal code section 851.6 (a) it was a detention, not an arrest. (b) his charges were released on 8-4-2017;
    6. The prosecutor (or the supervisor of the police station or the detective; do not remember now), said that nobody will touch a finger on it, and said it is dying in their hands. (Heard from the lawyer).
    7. Several weeks ago my friend did the petition of factual innocence ( Penal Code section 851.8) first to the authority department and then to the court with very strong evidence.
    8. Several days ago, the DA sent my friend an “opposition to motion” correspondence. In the correspondence, DA did not mention any evidence or their opinion about the case itself, at all. They merely said the petition is too early and my friend has to wait for 3 years (two years has passed). And they cited the case of Bedrossian to support them. Here is the case link . (https://www.leagle.com/decision/incaco20180227034).

    9. The court date is about 10 days later.
    ---------------------------------------
    My questions:
    (1) As far as I understand, in the case of Bedrossian, Bedrossian seemed fail to provide extra evidence to prove his innocence and he mainly tried to do the petition because the DA did not sue him, am I right for this point?
    (2). If I am right for question 1, would my friend ‘s case be a different one as he provided very strong evidence?
    (3) Did anyone one know any similar but successful case we could cite in the court; (successful petition of actual before the statue of limitation expires) ? if you happen to such case(s), pls let me know ASAP as the court date is coming soon.
    (4) We submitted strong evidence to the court to prove that My friend is not just innocent and he was the actual victim of demotic violence. Is there any legal provisions there we can use to talk about this?
    (5) Is there any other arguments we could use to fight for his innocence in the court?

    Thank you so much for your help in advance, any response count!
    ( FYI: he has a lawyer, but he still needs help here as this is a super challenge case).
  • 06-13-2019, 08:12 PM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    If charged as a felony, the statute of limitations to prosecute the case is three years. Unless the state dismissed the charges with prejudice, it can still be prosecuted. I suspect that is why he was old it’s too soon. He is likely going to have to wait out the sol before doing anything.

    Based on the case cited it has nothing to do with innocence or guilt. It’s merely a time game and he will apparently have to wait out the statute of limitations as did Bedrossian.
  • 06-13-2019, 09:38 PM
    LegalWriter
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting fly-fish
    View Post
    Hi everyone,

    My questions:
    (1) As far as I understand, in the case of Bedrossian, Bedrossian seemed fail to provide extra evidence to prove his innocence and he mainly tried to do the petition because the DA did not sue him, am I right for this point?
    (2). If I am right for question 1, would my friend ‘s case be a different one as he provided very strong evidence?
    (3) Did anyone one know any similar but successful case we could cite in the court; (successful petition of actual before the statue of limitation expires) ? if you happen to such case(s), pls let me know ASAP as the court date is coming soon.
    (4) We submitted strong evidence to the court to prove that My friend is not just innocent and he was the actual victim of demotic violence. Is there any legal provisions there we can use to talk about this?
    (5) Is there any other arguments we could use to fight for his innocence in the court?

    1. No. First, DA's don't sue, they prosecute. Bedrossian lost because the statute specifies that it can't be filed before the applicable statute of limitations has expired.
    2. No, you can't file it until after the statute of limitations has expired.
    3. No. The court doesn't have the legislative authority to act contrary to the specific dictates of the statute, which dictates the time to be "within 60 days after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed." You can't seek it until the statute has run out.
    4. No. No evidence can be presented because it can't be brought before the court at this time.
    5. No. See above.
  • 06-13-2019, 10:17 PM
    fly-fish
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    thanks for all the responses.
    as far as i know, there is another legal provision which says the petition to seal the record must be started within two years. could we use this conflict legal provision to fight against in the court?
  • 06-14-2019, 12:56 AM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Post the provision you believe requires you to initiate an action within. 2 years so somebody can review it. Given the case you cited says you can’t act during the sol to prosecute, I suspect you are misreading something.
  • 06-14-2019, 04:45 AM
    flyingron
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    I think he is talking about 851.8(l). It would seem ineligibility at an earlier time fits in the description of "good cause."
  • 06-14-2019, 09:38 AM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    This one?


    Quote:

    l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. Until January 1, 1983, petitioners can file for relief under this section for arrests which occurred or accusatory pleadings which were filed up to five years prior to the effective date of the statute. Any time restrictions on filing for relief under this section may be waived upon a showing of good cause by the petitioner and in the absence of prejudice.
    while he ma an action available under this statute (didn’t read thoroughly enough to know for certain) it would appear this section is a limitation that makes it available if the action is taken within 2 years. Op has stated it has already been two years so it would appear this section would not be available unless he can meet the standards set in the last line.


    It also appears it is an action based upon the belief of the arresting agency that there is a factual innocence. In other words: you have to have the cops admit they were wrong. For some reason I see a better chance of improving my life by beating my head on a wall.


    It also appears this is a separate action; one that doesn’t involve a court hearing. Other than that, op needs to read the section thoroughly to ensure it applies to his situation.
  • 06-14-2019, 01:52 PM
    LegalWriter
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Subsection (L) applies to cases where there has been an accusatory pleading filed--i.e. a formal criminal complaint which hasn't happened in the scenario the OP presented. The statute used to read that if a complaint was filed and dismissed, the person had 5 years from the date of the arrest or the date the complaint was filed to petition for a finding of factual innocence. The law changed and that is reflected in the subdivision--it shortens the time to seek factual innocence where a formal complaint is filed to 2 years instead of 5 years. Again, it doesn't apply to the OP's facts.
  • 06-14-2019, 02:40 PM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting LegalWriter
    View Post
    Subsection (L) applies to cases where there has been an accusatory pleading filed--i.e. a formal criminal complaint which hasn't happened in the scenario the OP presented. The statute used to read that if a complaint was filed and dismissed, the person had 5 years from the date of the arrest or the date the complaint was filed to petition for a finding of factual innocence. The law changed and that is reflected in the subdivision--it shortens the time to seek factual innocence where a formal complaint is filed to 2 years instead of 5 years. Again, it doesn't apply to the OP's facts.

    it applies to arrests and situations where there have been accusatory filings. They are two separate statements.

    As you can see they clearly differentiate between issues involving arrests and issues involving the filing of accusatory pleadings.


    Quote:

    l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later.
  • 06-14-2019, 02:51 PM
    pg1067
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting fly-fish
    View Post
    As far as I understand, in the case of Bedrossian, Bedrossian seemed fail to provide extra evidence to prove his innocence and he mainly tried to do the petition because the DA did not sue him, am I right for this point?

    This question is worded very poorly, but I think the answer is no. The primary holding of People v. Bedrossian is that a petition under PC 851.8 is premature if filed before the expiration of the statute of limitations for the underlying charge. This moots most of the rest of your questions.


    Quote:

    Quoting fly-fish
    View Post
    Did anyone one know any similar but successful case we could cite in the court; (successful petition of actual before the statue of limitation expires) ?

    We? There is no "we" here. This has nothing to do with you, and it sounds very much like you may be committing the crime of practicing law without being licensed to do so.
  • 06-14-2019, 10:23 PM
    fly-fish
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    thanks you for all your response very much.

    about the time
    (1) I made a little change for the time of the arrest to protect my friend's privacy, so when he started this petition, it was barely within 2 years.


    about "we"
    (2) sorry, it was just a typo for "we". My friend does not speak English well, I just help the translation.

    (3) For this case, it is obvious that the police made a wrong decision and arrested the actual victim, without careful investigation. However, it is never easy for the authority department to admit they made a mistake. And the law hinders innocent people to get their innocence back very quickly.

    My friend is desperate now after reading these responses. Could any one be still helpful for this actual victim?

    (pls do not be picky about my expression, my English is not very good either; he has enough evidence to prove he is the actual victim, so do not picky about the statement here)
    thanks again!
  • 06-15-2019, 06:34 AM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    The more I read the statute, the more confused I become and maybe I’m just really wrong but...


    Re Bedrossian:
    I can’t see anything that says you have to wait until the statute of limitations has expired prior to filing for relief. I don’t see the basis for the denial by the judge originally denying relief and I don’t see the basis for Bedrossian appeal. I find it hard to believe the original and appeals court got something so wrong so I must be missing something.....but what?




    The only mention of the pertinent statute of limitations is in reference to the time allowed if the initial petition is not responded to. It states that if the petition is not responded to within 60 days after the pertinent statute of limitations has expired or within 60 days in cases where the statute of limitations has already expired the petition is deemed to have been denied.

    That is merely stating that if a petition is not responded to within those time frames it is considered denied under the law. It does not say a petition is premature if filed before the pertinent sol has expired. It suggests if they don’t respond to the initial filing and the pertinent sol has not expired, the petition is not deemed denied until 60 days after the sol has expired, that sets up some very odd situations but since your application was denied, it is irrelevant. . Where the sol is quite long (5 years as an example) if the police or prosecutor did not respond to the initial petition, the petitioner would have to wait 5 years and 60 days after the arrest for the petition to be deemed denied. That is an odd requirement especially since if the petition is responded to and denied, that section doesn’t apply and one can immediately proceed to the next available action and file for a hearing before the court.



    since your petition was formally denied, that doesn’t apply. Furthermore, it states any petition that has been denied can be furthered by petitioning the court for a hearing. I don’t see where the sol (statute of limitations) prohibits you from filing with the court and I don’t see where the lack of the sol expiring is a basis to deny your petition, regardless what Bedrossian states.


    Furthermore, when considering section l (L), it actually says you have only two years after the action of the arrest or filing of charges to actually apply for relief. It allows this limit to be waived upon presentation of good cause.

    so, the law says you have only two years to file for relief without having to prove why you delayed the petition. This shows the law does not Want one to wait until the sol has run on the original charge considered. The state has placed an urgency on filing a petition for relief to as soon as possible by applying this 2 year limit.

    Several other sections of the law also allow for immediate request for relief. Section (d) allows for immediate relief by a judge upon dismissal of charges. Section (c) allows a party to file for relief immediately after charges are dismissed.

    So I say again, I find no requirement the petitioner wait out the pertinent sol of the initial charge considered. In fact, I find the law urges one to file for relief asap. I cannot agree with Bedrossian because I find no obligation to wait out any pertinent sol.



    Now, none of that removes you (your friend) from the obligation to support your petition. The law doesn’t appear to be a situation where the state first has to prove their case and the defendant rebut any proofs to be deemed not guilty. It specifically obligates a petitioner to support their petition and then it allows the state to present evidence that would show the petition should be denied. You have to make your case there was no reasonable cause to effect the arrest I.e. you were factually innocent
    Quote:

    In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made



    It suggests possible sources of support for the petition:

    Quote:


    Quote:

    any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant, and reliable.





  • 06-15-2019, 07:32 AM
    LegalWriter
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    jk, since I practice criminal law in CA and have for 30+ years, I think I know what I'm talking about....
  • 06-15-2019, 08:37 AM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting LegalWriter
    View Post
    jk, since I practice criminal law in CA and have for 30+ years, I think I know what I'm talking about....

    While that’s a bit arrogant, I’ll excuse that given your claim but if you disagree with me, support it. Show me where my statement is incorrect. To do so you have to show the statement

    for arrests occurring on or after Jan 1, 1981 and for accusatory pleadings filed on or after Jan 1, 1981


    doesn’t mean precisely what is written.

    The plain English reading of the statement supports my position. The very first statement speaks to issues involving arrests with no concern for whether charges were filed or not. The second statement speaks to when charges are filed. How can you not read that as speaking to two separate situations? For you to be correct, it would require the initial statement regarding arrests was superfluous. If the section does not address situations where only arrests are concerned, there would be no reason to mention arrests at all. Are you suggesting the legislators include superfluous statements in the laws they write or is it more proper to accept what they have written to mean precisely what is Written?


    Quote:

    l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. Until January 1, 1983, petitioners can file for relief under this section for arrests which occurred or accusatory pleadings which were filed up to five years prior to the effective date of the statute. Any time restrictions on filing for relief under this section may be waived upon a showing of good cause by the petitioner and in the absence of prejudice.





    and since you’re here, show me where Bedrossian is anywhere close to being correct. I do not see any obligation a petitioner wait until the germane sol has expired. This is a serious request. I find it hard to believe the original court and the court of appeals are wrong but for the life of me, I can’t see where the original premise by the trial judge was correct.
  • 06-15-2019, 09:41 AM
    flyingron
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    You're misinterpretting the first "AND" in the statute. That first phrase is an "applicability" qualifier. (L) applies to both accusatory pleadings and arrests (after Jan 1, 1981). Hence the rest applies to either arrests or pleadings or both. The rest of the statute uses the OR to indicate that those passages can be used on either event.

    It's like saying "This statute applies to cars and trucks..."
  • 06-15-2019, 10:11 AM
    LegalWriter
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting flyingron
    View Post
    You're misinterpretting the first "AND" in the statute. That first phrase is an "applicability" qualifier. (L) applies to both accusatory pleadings and arrests (after Jan 1, 1981). Hence the rest applies to either arrests or pleadings or both.

    I'm not misinterpreting anything. "Section 851.8, Subdivision (l) Applies to Limit the Time for Petitions Filed Under Section 851.8, Subdivision (c)." People v. Bermudez (2009) 172 Cal. App. 4th 966, 969. Subdivision ( c) is clear, "(c) In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred..."
  • 06-15-2019, 10:20 AM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting LegalWriter
    View Post
    I'm not misinterpreting anything. "Section 851.8, Subdivision (l) Applies to Limit the Time for Petitions Filed Under Section 851.8, Subdivision (c)." People v. Bermudez (2009) 172 Cal. App. 4th 966, 969. Subdivision ( c) is clear, "(c) In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred..."

    where do you find (l) addresses c specifically and is limited to c?

    Fly-fish


    this case supports my statement that you are limited to 2 years to petition for relief. It also states that ignorance of the ability to petition was not acceptable to have the sol set aside.

    https://casetext.com/case/people-v-bermudez-68


    it also flies in the face of the Bedrossian appeal and shows that decision was incorrect as one has only two years within which to apply for relief. If one was compelled to wait out the time of the original charges statute of limitations, it would prohibit all but the least serious offenses be allowed.


    Legalwriter


    from the discussion in the case you cited

    Quote:

    Nothing in the language of section 85l.8( l) or the aforementioned legislative history limits the two-year filing period to any one of the three classes of individuals entitled to relief under section 851.8. This suggests the Legislature intended the limitations period to apply to anyone entitled to petition for such relief.



    that clearly refutes your argument.
  • 06-15-2019, 11:41 AM
    LegalWriter
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting jk
    View Post
    where do you find (l) addresses c specifically and is limited to c?

    Can you read? That is a direct quote from People v. Bermudez (2009) 172 Cal. App. 4th 966, 969.
  • 06-15-2019, 11:48 AM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting LegalWriter
    View Post
    Can you read? That is a direct quote from People v. Bermudez (2009) 172 Cal. App. 4th 966, 969.

    Can you Read? I provided a pertinent quote from the same opinion. Yours merely states section l applies to section c. It does not say it applies exclusively to section c and my quote specifically states it doesn’t.

    the fact is, those statements you are leaning on don’t speak to anything other than stating which applicants, based on the dates of the stated action, would fall under the new two year limitation.

    So, not only are you misinterpreting the “and”, you are misinterpreting the entire sentence. It does nothing other than to specify, based by the date of the action that got the folks in this predicament to start with, who has two years and who has some other time to file their petition. It does nothing to limit the application of the time limit other than that.




    So, practicing law, in California, for 30 years? It would appear you need more practice.
  • 06-15-2019, 03:38 PM
    LegalWriter
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    I'm not going to waste anymore time giving you a lesson in interpreting a statute or its legislative history. Like it or not, the OP's friend cannot petition for factual innocence any sooner than the time that the statute of limitations on his offense has expired which, for a 273.5, is 3 years. If a criminal complaint is filed and dismissed by the DA or court, he has two years from that dismissal to petition for relief. At this point it is unlikely they will file but if they do, he can rest assured, it will filed as a felony...
  • 06-15-2019, 03:45 PM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting LegalWriter
    View Post
    I'm not going to waste anymore time giving you a lesson in interpreting a statute or its legislative history. Like it or not, the OP's friend cannot petition for factual innocence any sooner than the time that the statute of limitations on his offense has expired which, for a 273.5, is 3 years. If a criminal complaint is filed and dismissed by the DA or court, he has two years from that dismissal to petition for relief. At this point it is unlikely they will file but if they do, he can rest assured, it will filed as a felony...

    based on the very same case you cited, it would appear you have nothing to teach me. You disagreeing with the very same case you cited is, well, it’s kind of dumb

    and given the charge can be either a misdemeanor or felony, without it being charged it makes no sense to argue the petitioner must wait until the sol expires. Which sol applies? Does one guess?
  • 06-15-2019, 04:03 PM
    Taxing Matters
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting jk
    View Post
    So, practicing law, in California, for 30 years? It would appear you need more practice.

    Disagree on the substance if you like, but do you have also include personal attacks? This kind of snarky statement really does nothing to advance your argument, jk.
  • 06-15-2019, 04:23 PM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting Taxing Matters
    View Post
    Disagree on the substance if you like, but do you have also include personal attacks? This kind of snarky statement really does nothing to advance your argument, jk.

    . Maybe he shouldn’t have been snarky in inferring I’m ignorant when he posted his claimed experience.

    So how about your opinion TM?

    Quote:

    b) If, after receipt by both the law enforcement agency and the prosecuting attorney of a petition for relief under subdivision (a), the law enforcement agency and prosecuting attorney do not respond to the petition by accepting or denying the petition within 60 days after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed, then
    [20 Cal.App.5th 1074]

    the petition shall be deemed to be denied.
    where does it say one must wait until the germane sol expires? My interpretation is that the only thing that even mentions an sol is in determining if the petition is denied in cases where the police or prosecutor has not responded to the petition and it is within 60 days after the running of the sol.

    That is nothing more than stating it is a de facto denial if the petitioner has not received notice within that time. I see nothing that states the relief is not applicable until the sol has expired.

    More concisely;

    Section b addresses only when an application is considered to be denied if a response is not received by the petitioner.

    Then, it goes on to state a petitioner denied can appeal the denial to the court’s.

    Arguing the sol applies based on the fact no charges have been filed when weighed against section c doesn’t jive. C suggests the statute is not concerned with the possibility of the state pursuing charges.

    C addresses when a person has been charged and the charges dismissed. It does not specify if the dismissal is with or without prejudice so there is the same opportunity in c as there is b For the state to pursue charges.

    The only difference is in c, well, there really isn’t any difference as far as a difference in how the law discussed applies to anything. To me, that further supports my contention that all the statement in b concerns is determining when the petition is denied so the petitioner can take the next step, which per section l must be within 2 years of the arrest (per the case legalwriter provided)

    above all else, since the court in legalwriters case said the sol applies to all petitioners, it proves section b cannot require one to wait out the sol of the crime involved. If you believe otherwise, can you somehow try to consolidate the two opposing claims such that section l can be respected while complying with legalwriters claim regarding section b? I just don’t see it being possible.
  • 06-15-2019, 08:26 PM
    LegalWriter
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    You are ignoring other subsections AND caselaw. Reconcile your position with People v. Bedrossian (2018) 20 Cal. App. 5th 1070 which has the same procedural history as the OP posted. You have to consider the whole statute, not just one section. As for the statute of limitations, it's very clearly in subsection b "after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed"
  • 06-15-2019, 10:29 PM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    You have misquoted the law. It says this:

    Quote:

    the law enforcement agency and prosecuting attorney do not respond to the petition by accepting or denying the petition within 60 days after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed, then the petition shall be deemed to be denied. In any case where the petition of an arrestee to the law enforcement

    not this/
    Quote:

    after the running of
    Quote:

    the relevant statute of limitations


    it isn’t the same thing
    you also ignoring the fact the sentence within b ends with this:

    [/QUOTE]then the petition shall be deemed to be denied[/QUOTE]

    all that sentence states is if there is no response within the timeframe stated the petition is deemed denied. It says nothing to when one is eligible to avail oneself of the benefit of this law.

    and as to case law; I cited the case you provided that states the 2 year limit applies to ALL 3 classes who may seek relief under this law.

    How do you ignore that case law?

    and yes, I still believe Bedrossian is wrong because the law does not state a time which one is eligible to petition the court. The fact one can petition the courts immediately after charges have been dismissed and denying that to people who had no charges filed is unconstitutional as it does not afford for equal protections under the law. I explained previously why there is no effective difference in the action of the law to each of those classes.

    It is also inequitable since it effectively punishes a person who appears to be more likely to be factually innocent than one the one who actually had charges filed.

    It’s odd that you have changed your position from L not applying to b to now it somehow applies to b. Why is that? I know. In your original position there was no sol applicable to situations where there was an arrest but no charges filed.
  • 06-15-2019, 11:10 PM
    Taxing Matters
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting jk
    View Post
    Maybe he shouldn’t have been snarky in inferring I’m ignorant when he posted his claimed experience.

    Well, you already addressed that earlier when you called him egotistical. I didn't take his statement to suggest you are ignorant, but only that he may know more of the subject because of his experience in practicing law. But your follow-up with the additional snarky comment seemed to me to start piling it on, and that can derail a thread into rounds of insults that don't do any good for anyone. I was hoping to cut that off before that happened. Always a tricky thing to attempt on a message board forum; there is the risk I get shot in the cross fire. :p

    Quote:

    Quoting jk
    View Post
    So how about your opinion TM?

    I have no opinion on the issue of the SOL involved here. It's very much a unique California state legal issue that I've not researched, have no experience with, and therefore really don't have a view as to how the process works. I think the OP's friend really needs to see a California attorney familiar with the process of sealing records for assistance. It may make a difference how this goes after the actual record is reviewed, among other things. And, of course, the friend wouldn't want to rely on the opinions of anonymous people on the internet for this anyway.
  • 06-15-2019, 11:27 PM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    I don’t recall calling him egotistical. I do recall calling him arrogant though.


    But to add to my argument;

    especially now that legalwriter says the two year limit does apply to situations where no charges have been filed, he might explain the impossibility that creates since the clock starts running at the date of arrest. Obviously it makes no sense to argue it applies but legalwriter has come up with some self created claim it starts after the sol for the crime passes. How can that be when Section l clearly states the clock starts running at the date of arrest?
  • 06-16-2019, 07:15 AM
    budwad
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting Taxing Matters
    View Post
    Disagree on the substance if you like, but do you have also include personal attacks? This kind of snarky statement really does nothing to advance your argument, jk.

    You can't be surprised at JK's personal attacks whey one disagrees with his opinion, can you? He' been attacking me for years. Nobody (well almost nobody) every came to my defense.
  • 06-16-2019, 10:26 AM
    jk
    Re: Challenge for Petition of Actual Innocent Within Statute of Limitation
    Quote:

    Quoting budwad
    View Post
    You can't be surprised at JK's personal attacks whey one disagrees with his opinion, can you? He' been attacking me for years. Nobody (well almost nobody) every came to my defense.

    And of course I shouldn’t be surprised budwad trolling me here
All times are GMT -7. The time now is 10:42 AM.
Powered by vBulletin® Version 4.2.4
Copyright © 2023 vBulletin Solutions, Inc. All rights reserved.
Copyright © 2004 - 2018 ExpertLaw.com, All Rights Reserved