Frequently asked questions. (FAQ).

I have a prior misdemeanor conviction, can it be expunged ?

Yes. In most occasions misdemeanor convictions can be expunged. With few exceptions, Our office has succeeded in expunging all our client's past misdemeanor convictions.

I have a prior felony conviction, can it be expunged ?

Yes. Felony convictions can be expunged in a two step process under California PC 17(b), provided that (1) the felony was a Wobbler and (2) probation was granted.  A Wobbler is a California penal code violation, that can be charges as either a felony or a misdemeanor. Numerous felonies are wobblers under California law. If probation was denied,  or the defendant was sentenced to state prison, then the felony can not be expunged.

I have a prior felony conviction and I am still in probation. Can my record be expunged ?

Yes under certain circumstances the record can be expunged by filing a petition with the court for early termination. This matter will be discussed during our initial consultation.

I am not a U.S. citizen, can a criminal conviction cause me to be deported from the U.S. ?

Yes. If you either have a green card, have applied for a green card but don't have one yet, are out of status (your visa expired) or entered the U.S. without inspection, most criminal convictions even if you don't serve jail time and are granted probation can lead to your deportation from the U.S. Furthermore if you were arrested and booked (your picture and fingerprints were taken at the police station) homeland security, will have a immigration hold. An immigration hold allows homeland security to take you in custody and move you to a holding facility, such as Lancaster, San Pedro, or to an adjacent state such as Arizona due to present jail overcrowding . This can  happen quickly, often while you are still in court and just plead guilty to a charge.

Does a green card afford me any protection from deportation ?

No. The reason is you only maintain permanent residence so long as you are not charged and convicted of (even if you voluntarily plead to the crime on condition of not serving jail time  "probation" ) a crime.  Under Immigration law, there is a term I use for explanation purposes, "parallel universe". In this parallel Universe, Penal code violation which are classified as infractions, misdemeanors and felonies have their own unique classification and thus consequences under immigration law. Crimes that can subject you to deportation (removal) are two convictions for a crime involving  "Moral Turpitude" which is very broadly defined and includes numerous crimes, and "aggravated felonies". A aggravated felony under immigration law is a misnomer. Bears no relation to serious crimes under criminal law. As an example a domestic violence, battery or assault, otherwise classified as a Misdemeanor under the California penal code is classified as an aggravated felony, under U.S. immigration law and will subject you to deportation. Aggravated felonies have no waiver. Most crimes charging you with violent acts, domestic violence, theft crimes, drug possession crimes (simple possession under 30 grams marijuana for personal use excepted), prostitution, and any use of a fire arm can also get you deported, a complete exhaustive list is clearly beyond the scope of this article and will require our consultation in private.

The only protection afforded by a green card, is one of "due process", meaning that if you don't yet have a green card, or have "illegal" status, you are subject to "summary removal" a procedure where after serving your sentence, or even after being granted probation with no jail time, immigration can take you in custody, put you on a plane and in effect ship you back to your country of birth. If you have a green card and released you will receive a "NTA" Notice to appear, to go before the immigration court, which is under Federal jurisdiction to defend your self all over in a separate and completely different , formal court hearing. Unlike in a criminal court, (juveniles are subject to special representation),  a free defense attorney at government's expense is never provided to you in an immigration court. You are simply on your own. Plea bargains, a creation of criminal justice system do not exist in a immigration court. You either have a defense (unrelated to the defense you put up in the criminal matter) or you don't.

I am non citizen facing criminal charges do I need to hire more than one attorney ?

Since 1996 "IIRRA" has resulted in the deportation of thousands of resident aliens, who plead to a plea bargained offense,  often under pressure, on the advice of their well intending defense attorney. It is common for defense attorneys to concentrate their efforts on keeping their client out of jail, leaving the immigration matter to an immigration attorney.  Faced with a cash strapped client,  who can barely pay enough to have his attorney plea bargain the case, the attorney is challenged with either accepting a probation offer, with adverse immigration consequences, or trying  the case through the  jury trial on a shoe string budget.  Faced with this dilemma, a conscious decision is made to  disregard the immigration consequence . The problem with this approach is twofold. 1- There may be an "immigration hold"  (defendant is taken in custody by homeland security, even though the DA promised probation. This can happen quickly. Often while still in court ) and 2. The damage is done, requiring hiring an immigration attorney, specializing in deportation law, paying additional attorney fee,  and going through an entirely new trial.
When a plea bargain is recommended by your attorney,  every effort should be made to consider alternatives with no immigration consequences. When this goal is not practical under the circumstances, your attorney should negotiate the wording of the actual charges and the penal remedies on the record. If your attorney does not have this expertise, you will always benefit by first consulting  an immigration attorney before accepting a plea.

A Law enforcement officer is questioning me on the phone, should I cooperate ?

Are you being investigated by a cordial and seemingly friendly detective, or an FBI special agent who keeps
calling you for information. Your cooperation with law enforcement hardly ever works to your advantage. When
a person is under an Ora of suspicion, everything the suspect says including answers to otherwise Innocuous questions, such as time, date or place information can and will be used as an admission. Every conflicting statement given at  a follow up investigation weeks later when your memory is foggy and unclear, can and will be used against you by the prosecution to portray you as a Liar. 

Detectives are experienced professionals, and receive extensive training on how to testify at a preliminary hearing or trial. A seemingly friendly detective can trick you into an admission or a confession which will be used against you at trial. This is completely legal under current law. As you can understand, unless you had absolutely nothing to do with the incident that lead to your questioning in the first place, it is rarely advantageous to volunteer your cooperation to law enforcement, outside the presence of your attorney.

A Law enforcement officer is knocking the door, yelling that he has a warrant to search my apartment. Should I let him in?

Assuming you do not have a prior conviction (where as a condition of granting probation, you agreed to a future Warrant less search) contact your attorney on the first available opportunity. Otherwise, you have the right to see and be served with the warrant. The search warrant should be recently signed, state, the address where the warrant is being executed, naming the items and places to be searched with particularity, and signed by a judicial officer. If the warrant is lacking in any of the above, it is defective and you should let it be known. If the officer can not produce a warrant, you are under no obligation to authorize them to conduct a search, even if the reason given is to search for another occupant's possessions. Note: however this does not mean you should physically confront, tangle with, or to threaten law enforcement. That kind of conduct can lead to your on the spot arrest on a separate charge, such as assaulting a police officer (a felony). The validity of the search, is a matter that should be taken up by your attorney, at the first available opportunity, by means of a motion to suppress.

Note:  Warrant-less searches are permissible under curtain circumstances, referred to as "exigent circumstances", the full scope of which is beyond the scope of this article.

Can law enforcement search my automobile without a warrant:

The simple answer is it depends on whether your car is in motion or parked. If you are driving and are stopped by law enforcement who identifies himself or herself as such, a minimal standard applies. Meaning that a suspicion that a traffic offense has occurred by you, is sufficient to stop an automobile. In one of my recent cases my client was stopped for no more than a dice dangling from the front mirror. Once you are ordered to stop, law enforcement may search your auto, under the guise of police safety, e.g.  finding a potential threat such as a hidden weapon. Searching a parked car requires a warrant, unless it is a traffic related tow, in which case the vehicle may be searched for inventory purposes only. The legality of this search, again is not intended to be addressed by this article, is a matter beyond the scope of this article and should be discussed with us in private.

How does one post bail:

Bail is posted by paying the premium (generally 10% of the face amount) , by cash deposit if you intend to avoid paying the bail bond premium, or by putting up your real estate. The Law office of Allen Farshi, will be happy to arrange for your bail. We work with professional bail bondsmen who will show up in court or at your residence.. We can often convince the bail bondsman to post bail up to $100,000 without collateral, so long as you are employed have a co signor and not otherwise a flight risk. In a recent attempted murder case, I convinced the arraignment judge to keep bail at $20,000 even though the prosecution vehemently objected and wanted my client's bail to be reset to that of his co defendant's, $300,000.

My bail is set too high, is there any way to reduce the bail:

Yes. Although bail set consistent with the bail schedule, is presumptively correct, your attorney should always ask for a bail reduction hearing, to argue for your bail reduction. If your attorney prevails, the bail will be ordered reduced.

Administrative warrants:

Are executed differently. Often your premises may be searched without a warrant. Again a matter beyond the scope of this article.

Disclaimer:  The preceding paragraphs are for information purposes only, do not constitute any legal advice or opinion,  and is not intended as either a substitute for or advise of an attorney. As you may have noted, every rule and procedure has it's exceptions. This is why it is always advisable that you consult your attorney and to not presume that any article of this nature will equip you with sufficient knowledge and information to draw any legal conclusions. Additionally, this page is kept current only as our time allows, and the information given here may not be current. We make NO GUARANTEES  as to the accuracy of the information herein and you should not rely on it. Our practice is limited to the State of California.

Copyright 2006 © Allen Farshi, Esq.