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false charge listed - not the usual circumstance Criminal Records, Expungement

Discussion in 'Criminal Records, Expungement' started by Mmurf, May 27, 2022.

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  1. Mmurf

    Mmurf Law Topic Starter Member

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    Jurisdiction:
    California
    My brother-in-law was accused of raping his then-girlfriend (same age) in 1995. they were both 16 years old. he was found guilty by adjudication and was sentenced to 6 years in CYA. Fast forward to today, he received stolen property and due to his past they want to get him for 25 years (3 strikes law). we noticed the enhancements said he was charged with sexual assault of a child under 14 years old and more than 10 years his minor. Since we know that wasn't the case we wenr over his records to find where the error occured. We found out that the error occured from day 1 of the original trial. So he was found guilty of SA on under 14. This error is quite unbelievable as the court minutes mention the victim was 16, they were in the same grade, etc, etc.

    This error resulted in a longer sentence, increased his enhancements when he got drunk while on parole, and are affecting his enhancements to now. not to mention the prejudice he's faced along the way, because, let's face it, SA against under 14 when perpetrator is over 24 us looked at as much worse than if they were dating and the same age (which was the case.)

    Can we sue the county (and I know we can sue anybody anytime, so don't reply with that)? Also, how do we correct the error?
     
  2. Zigner

    Zigner Well-Known Member

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    As an attorney representing him, you really ought to know these answers. You ARE his attorney, right? If you're not, then there really is no "we" in this. Your brother should speak to an attorney...there's nothing you are going to be able to do to help with that, except maybe to front him the money.

    EDIT: In case my answer wasn't clear: There is no "WE" in this situation. Also, no, he's not going to be able to sue the county about this, nor anyone else. His attorney may be able to help him straighten out this mess.
     
  3. Mmurf

    Mmurf Law Topic Starter Member

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    you give Attorneys FAR too much credit. his 1995 attorney didn't catch the erroneous charge despite the victims age being discussed over and over. And the attorney in his current case didn't believe him since his records show he was guilty of the erroneous charge.

    now, why can't we sue the county for the mistake?
     
  4. justblue

    justblue Well-Known Member

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  5. Zigner

    Zigner Well-Known Member

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    (1) Because there is no WE in this. This has NOTHING to do with you.
    (2) Because 1995 to 2022 is 27 years ago.
     
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  6. Zigner

    Zigner Well-Known Member

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    Thanks for pointing this out. Apparently, either the OP is a liar, or the OP's brother AND brother-in-law were convicted of the same thing in 1995.
     
  7. Mmurf

    Mmurf Law Topic Starter Member

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    doesn't the statute of limitations start when discovered? If no one noticed the error until recently then it shouldn't matter when it happened.
     
  8. Zigner

    Zigner Well-Known Member

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    Nope - it starts when it could reasonably have been discovered...or, in your [relative's] case, when he turned 18.

    You've been told over and over and over again that he needs an attorney. There's really nothing more that can be said.
     
  9. Mmurf

    Mmurf Law Topic Starter Member

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    what does PxHx mean? Patient history? I figured it out when I was going over his current case. the reason for enhancements was listed as "under 14, etc." Since we all know the victim was the same age as brother in law since we all went to the same school we pulled the old case records from juvenile justice records hall and saw the original charge as listed incorrectly.

    I'm a woman, btw. and didn't personally know the perp at the time as I was much younger, but everyone knew the case and my mom worked at the HS so I know the victims age. Why would I lie on this forum? it wouldn't benefit me to do so and would be a waste of my effort and time
     
  10. Zigner

    Zigner Well-Known Member

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    In October, it was your brother. Now, it's your brother-in-law. Unless we're talking about two different people, you lied either then or now.

    (Px Hx is telling others to review your posting history)
     
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  11. Mmurf

    Mmurf Law Topic Starter Member

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    why when he turned 18? he was still in cya at the time. according to his cya reports it appeared to be common knowledge the victim was 16 at the time of event. Why would he think the charge would reflect anything else? he has an attorney btw, I'm presenting this to him on the 6th.
     
  12. Mmurf

    Mmurf Law Topic Starter Member

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    his lawyer was informed of this but said we were mistaken. I found the proof to show we were very correct.
     
  13. Zigner

    Zigner Well-Known Member

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    Because the statutes of limitation (generally) are tolled (paused) for a minor until they reach the age of majority (adulthood). Once he turned 18, any clock began running.

    Oh good lawd - he HAS an attorney. Your [relative] can let HIS attorney know about the matter and his attorney can handle it. You really are further up in his business than need be.
     
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  14. Zigner

    Zigner Well-Known Member

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    Give your [relative] the information you have discovered so that HE can present it to HIS attorney.
     
  15. Mmurf

    Mmurf Law Topic Starter Member

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    brother/brother in law - who cares if I chose to shorten to save myself time. point was clear that it wasn't me. I would use him name as it is shorter than both those options, but it would violate the rules.

    I type this on my phone. I don't want to type brother-in-law over and over nor does it effect the issue.
     
  16. Zigner

    Zigner Well-Known Member

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    Let's slow down a bit here...

    To be eligible for a third strike, his current felony charge would have to be for a "serious or violent" felony (California’s Three Strikes Sentencing Law - criminal_justice). Receiving stolen property is not a "serious or violent felony that would qualify as a third strike (https://www.calcriminaldefenselawyers.com/receiving-stolen-property-pc-496a-l).

    I suspect that your [relative] hasn't been as up-front and honest with you about his charges as you may believe...but most criminals aren't very up-front and honest, are they?
     
  17. Zigner

    Zigner Well-Known Member

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    Right, intentional dishonesty (a lie).
    It's easy for you - and I suspect it's just as easy for your BIL (it's easier to type that than either "brother in law" or "brother").
     
  18. Mmurf

    Mmurf Law Topic Starter Member

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    he asked me to help. he has a hard time communicating as he has ptsd from cya. he doesn't know how to explain things, and I do research and reports for a living so I can present things in a tidy little package that the lawyer can understand, see paper trails, evidence, etc. so please, can we just focus on the issue at hand? what's the point of a forum if the answers are "get a lawyer, or leave it up to the lawyer 89% of the time?"
     
  19. Zigner

    Zigner Well-Known Member

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    This forum is NOT here to provide criminal defense services. In fact, it is explicitly stated on every page of this forum that one should not rely solely on the information/advice received here and should seek the advice of an attorney.
     
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  20. Mmurf

    Mmurf Law Topic Starter Member

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    I've seen all the complaints. I'm looking at them. the theft was of two non working jetskis and they were on one jetski trailer. they actually have 4 charges listed. the first count combines all three into one charge, the 2ns count has one jetski listed, 3rd count is the other jetski, and the 4th count is for the trailer.

    he said he bought them as one package off an individual which is something we would have to prove in court.

    I'm sure there is some type of law that prevents items from being listed twice on the same complaint.
     

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