Category: Criminal Defense

Difference Between PC851.8 Motion for Factual Innocence and PC851.91 Motion to Seal Arrest Record

Many people don’t realize that getting arrested, even if you are never convicted, can have a drastic effect on the rest of your life. Having an arrest record creates a stigma, rightly or wrongly, that can cause you to miss out on opportunities such as schooling, renting or buying a home, and getting professional certifications and designations. If you have been arrested and are finding it difficult to do certain things because of your record, then you do have some options available to either remove the record or have it hidden from the public.

One option is to apply for a motion of factual innocence under PC 851.8, or to have your record sealed under PC 851.91. Both of these options carry different requirements to be eligible – and the veteran criminal law attorneys at Lamano Law Office can help determine which, if any, applies to your situation.


PC 851.8 – Motion for Factual Innocence

A factual innocence motion will show that you are deemed innocent of the charges that had been levied against you. You can only apply for this if no charges were filed against you after your arrest, the prosecution did not go through with attempting to convict you after charges were filed, or a jury acquitted you of the charges. In any one of those situations, you are viewed by the law as being innocent and can apply to have your record reflect that.

If the motion is successful, then the record of your arrest will be sealed for three years by the police department that arrested you in the first place. It will not be visible to the public, including potential educational institutions, employers, or landlords. After three years have lapsed, they are required to destroy the record completely so that there is no longer any trace of your arrest.


PC 851.91 – The C.A.R.E. Act

The Consumer Arrest Record Equity (C.A.R.E.) Act was enacted in 2018 as another avenue to have an arrest record expunged. Under this act, you can apply for expungement under the same eligibility requirements as a motion for factual innocence, but also includes a conviction that was reversed on appeal. There are some restrictions to apply under the C.A.R.E. act, however. They include that you were not arrested for murder or another crime for which there is no statute of limitations and you did not try to impede the efforts of prosecutors through identity fraud or other illegal means.

If your petition is granted by the court, then a notice is sent to certain parties to start the process of sealing your record. This includes the Department of Justice, the prosecution, and the arresting police department. The court must notify you that your record is sealed, and all of those entities must make sure that it is not accessible by anyone in the public. If anyone from any of these agencies disseminates information from your record, then they will be subject to civil penalties.


What is the Difference Between the C.A.R.E Act and a Motion for Factual Innocence?

On the surface, these two methods for having your arrest record hidden from public view seem very similar, but there are some key differences between them that are important to understand. For instance, with a factual innocence motion, there is no requirement to wait until the statute of limitations has expired. Possibly the biggest difference between the two is that if with the C.A.R.E. Act, you can still get your record sealed even if you were convicted. However, you must successfully appeal that conviction to be eligible.

Making a motion for factual innocence is a much more involved process than applying under the C.A.R.E Act. For a successful factual innocence motion, the law enforcement agency that made the arrest must respond within 60 days. If they do not respond, then you can request that the court seal and destroy your record, and the process is complete. However, the law enforcement agency has the right to object to your motion. If they do, then it is up to you to demonstrate that you should not have been arrested for the crime. The bar is very low for law enforcement to contest a motion for factual innocence since they only have to prove that they had reason to arrest you. That is a much lower threshold to meet than needing to show cause to charge you. With the C.A.R.E. Act, your petition can only be challenged based on your eligibility. That said, if your arrest was for a domestic violence charge, child or elder abuse, and you have a prior history of similar arrests, then you must make a formal declaration explaining why sealing your records are in the interests of justice.


Hire the Best Criminal Defense Lawyers Near You

If you apply to have your arrest record sealed then you want to make sure that you have the best representation possible. You need a knowledgeable and experienced criminal defense attorney on your side who will understand how to make the best argument on your behalf, both in your initial application and if it is contested.

Your arrest record does not have to be a black mark against you for the rest of your life. Contact the Bay Area criminal defense lawyers at Lamano Law Office at 510-842-0750 to determine whether you are eligible to have your record sealed or destroyed under PC 851.8 or PC 851.91.

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Having Sex With a Minor

Having sexual intercourse with a minor is obviously against the law, but it’s not always a simple case. What you are charged with and what the potential consequences will be will largely depend on several factors, such as the exact age of the minor and how old you were at the time of the offense. It can be a tricky situation, and it is only exacerbated by the social stigma attached to these types of offenses. Here’s what you need to know about being charged with having sexual intercourse with a minor.


Statutory Rape

Most people probably think of the term statutory rape when the concept of sex with a minor is brought up. A statutory rape charge applies when someone has intercourse with a minor under the age of 18. This crime is covered in Section 261.5 of the California Penal Code. California is one of the few states that allows people to get married at any age, however, it requires parental consent and the consent on the court. In such a situation, intercourse with a minor may be legal.


When it comes to statutory rape, consent can never be a defense. If the child is under the age of 18, then having sex with them would be illegal. It is still illegal even if you are under the age of 18, or very close in age to the minor. Since they are not of legal age to have sex, then they cannot “consent” to the act.


That said, statutory rape can be charged as a felony or a misdemeanor. This is what is known as a “wobbler” offense. The circumstances at the time of the incident will dictate how severe the punishment will be if convicted. Those circumstances are the ages that you and the minor are when you have sex.

For instance, if you are close in age and within 3 years of the minor, then the charge will be a misdemeanor. You may face jail time and a fine.

Being more than 3 years older than the minor means the sentence is a bit higher. If the minor is 16 or 17 years old, then the court has the choice of charging you with a misdemeanor or a felony. If it is charged as a misdemeanor then the consequences are the same as if you are close in age to the minor. If it charged as a felony, then the consequences are much harsher and could include several years in jail.

When the victim is under 16 years of age, then the penalties can be even more severe, especially if you are over the age of 21. Fines and jail time for this offense can be quite high.

If you are convicted of statutory rape you will not necessarily be counted on the sex offender registry. However, a judge can mandate that you register at their discretion. They would only do this if the details of the offense and the specific case warrants that designation.


Lewd Acts With a Minor

A lewd act is any behavior that is sexual in nature. If your sexual encounter is with a minor who is under the age of 14, then the charges you face could fall under the Lewd Act Section of the Penal code, 288(a).

A lewd act can mean one of many things. For example, it could be touching a child inappropriately through clothing or on bare skin. It can also be if you got the child to touch themselves or someone else in a sexual or provocative way. To be a criminal offense, the touching must be on purpose, and you must have done it for sexual arousal of some kind, whether it be for yourself or the minor. Again, a minor cannot consent to these acts, so that can not be a defense.

Since the victim is under the age of 14, the state considers this a felony, and the penalties can be much more severe than if you are charged under the statutory rape law. Along with jail time and fines, you can also get a strike on your criminal record. Since California has the three strikes law, subsequent convictions can mean even more jail time and higher fines. Not only that, but you will be mandated to register as a sex offender. Lewd acts with a minor is a serious crime and carries serious consequences.

Defending a charge of statutory rape or lewd acts with a minor can be incredibly difficult. You need the services of a knowledgeable and experienced attorney who can fight for your rights and for the best outcome possible. If you have been charged with having sexual intercourse with someone who is a minor, contact Lamano Law today at 510-842-0750 to talk about how we can help.

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