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  1. #21
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting LegalWriter
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    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?

  2. #22
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting jk
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    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.

  3. #23
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting Taxing Matters
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    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?

    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.

  4. #24
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    Default 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"

  5. #25
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    You have misquoted the law. It says this:

    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/
    after the running of
    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.

  6. #26
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting jk
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    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.

    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.

  7. #27
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    Default 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?

  8. #28
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting Taxing Matters
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    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.

  9. #29
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    Default Re: Challenge for Petition of Actual Innocent Within Statute of Limitation

    Quote Quoting budwad
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    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

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