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Jeuvenile rape conviction done properly??

Discussion in 'Juvenile Crime, Law & Court' started by Mmurf, Oct 27, 2021.

  1. Mmurf

    Mmurf Law Topic Starter New Member

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    Jurisdiction:
    California
    In 1995 my brother was accused and found guilty of rape (not like it matters, but the girl he "raped" was his gf of the same age and the accuser was the gf's mom. Later the gf went to the DA to clear the air and she got scared when he said that lying under oath was punishable by 10 years in prison.). My brother was 16 at the time he was charged and 17 when he was found guilty. He did not receive a jury trial. He was sentenced to 7 years in CYA. Since he was released he has stayed out of trouble aside from one parole violation when he got drunk and was called in to a pee test. He is now successfully off parole/probation and has been that way for 10 years

    We no longer want him to have this following him around. The original charge is considered a violent strike and he has to register as a sex offender. My question is this- with all the new laws being put into place regarding sex offenders- is there any way we could expunge his past? He was a minor at the time and since he didnt have a jury trial that means he was tried as a juvenile. Would that relieve him from his tier 3 sex offender status? Would any of this be enough to remove his strikes?
     
  2. adjusterjack

    adjusterjack Super Moderator

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    I don't think there is anybody here who can tell you what could or couldn't happen.

    Your brother (not you) should consult an attorney who is experienced in expunging convictions.
     
  3. justblue

    justblue Well-Known Member

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    Girlfriends can be raped (noticed how I didn't minimize the word RAPE by putting it in quotes?). Unless you are an attorney there is no way for you to have his RAPE expunged from his criminal record. It's doubtful that even an attorney would be able to do this.

    You're brother was convicted of a vile crime and as a result he will have to deal with the consequences for life.
     
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  4. Redemptionman

    Redemptionman Active Member

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    Hate to say it but most violent and sexual convictions do not qualify to be expunged especially felonies. Most of what can be expunged regardless of state are non violent felonies and misdemeanors. It would take a pardon to get what you want done, luckily you are in a good state to seek relief from such things. Contact an attorney like Jack stated and you should at least be able to get it into the pipeline. Good Luck.

    and I have seen over zealous prosecutors do this to juveniles all the time. It is nothing new, I think the people who say live with it are just dumping on the situation. This is perhaps the most difficult of things to have removed from your record due to the nature of the crime. If it was me I would look for trade schools and rehabilitation for your son. He will never be able to over come it from an employment stand point but he could start his own business. Stay positive and hope he turns his life around.
     
  5. Zigner

    Zigner Well-Known Member

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    California law would make sex between the boy and his GF a misdemeanor, but the crime was a felony. That means the boy was more than three years older than the girl (making her 13 or younger). I don't think that this was an "over zealous" prosecution, rather, it was a 16 (close to 17) year old convicted of raping a <14 year old child.
     
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  6. Mmurf

    Mmurf Law Topic Starter New Member

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    Thank you for not answering the question and pointing out the obvious fact that since Im not an attorney I cant do much on my own to help him.

    I would like to say that despite the popularity of the me too movement, Very rarely are girlfriends raped by boyfriends. Im a girl and neither myself nor any of my friends have ever been raped by our boyfriends or even heard of anybody getting raped by their boyfriends. Im a feminist and support the idea that we should be believed even if we are up against a society that still tends to put men above women, but I also know the circumstances of this case. My brother had moved on to a much prettier girl and she didnt take it well. There was no physical evidence- just his word against hers. This is a real world application of the phrase Hell hath no fury like a woman scorned. So spare me the tone if youre not going to offer constructive advise.

    In california a juvenile rape charge can either be a tier 2 or tier 3 offense depending on the court the kid was tried in. My brother was tried in juvenile court so shouldnt that be a tier 2 offense? I dont give a crap if its expunged, I just dont want him to have to register as a sex offender forever. Hes suffered enough for something he didnt do. I just want him to be able to get a job and function in society without people judging him. As you have just shown, sex offenders are rarely given a second chance or the benefit of the doubt.
     
  7. Mmurf

    Mmurf Law Topic Starter New Member

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    They were in the same grade. Same age. Same school. She said it was rape. His word against hers. She won.

    Isnt that a new law? Or was that also the case in the year 1995?
     
  8. Mmurf

    Mmurf Law Topic Starter New Member

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    That is the obvious answer, but when an attorney isnt feasible then what? I just want him to not have to register as a sex offender forever so he can get a job.
     
  9. Mmurf

    Mmurf Law Topic Starter New Member

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    If it should have been a misdemeanor then that would be grounds to get him off the sex offender registry. The age of both him and the victim is easily provable. It was a rape conviction though which makes me think it still wouldn't be a misdemeanor.
     
  10. Zigner

    Zigner Well-Known Member

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    Don't think - tell the rapist...err...your brother that he will want to speak to an attorney.
     
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  11. Redemptionman

    Redemptionman Active Member

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    You have your truths and they have their truths. Then it becomes what is the truth, I am confused though. If the kid was tried in juvenile court then wouldn't juvenile rules apply, or was he tried in juvenile court with an adult felony.

    Since if he was tried in juvenile court then was he tried as an adult? with an adult felony conviction. If that is the case then he got stuck with something no one should have to face at such a young age.
     
  12. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    According to the law...

    (4) Effective January 1, 2012, no person shall be excluded pursuant to this subdivision unless the offender has submitted to the department documentation sufficient for the department to determine that he or she has a SARATSO risk level of low or moderate-low.

    SARATSO - Home
     
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  13. zddoodah

    zddoodah Well-Known Member

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    I'm not sure who "we" are, but the only person who can do anything about this is your brother, and he ought to consult with a local attorney. A lot will depend on the section(s) of the Penal Code he was convicted of violating, whether the matter was adjudicated in juvenile or superior court, and all other relevant facts.

    For starters, it's entirely possible that this holier-than-thou conclusion isn't correct. Also, it sounds to me like both persons involved were under 18, which means the "rape" may have been statutory rape, which (a) is hardly a "vile crime," and (b) likely was committed by both of them against each other.

    Then do a shitload of internet research and get down to the county law library and spend several days reviewing criminal procedure books. Your brother or you will also probably need to spend some time at the court clerk's office.
     
  14. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    California Penal Code 261.5 PC
    (a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age. (b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.


    If they were the same age and it was a felony conviction odds are it wasn't statutory rape aka Unlawful sexual intercourse.
     
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  15. Zigner

    Zigner Well-Known Member

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    The girl was going to tell the police that she wasn't RAPED. The police didn't say "it didn't matter, you're under 18". No, the police told her that she could get prison time for lying, which is when the girl decided not to change her story after all.

    To ME, this seems more like RAPE (PC 261) than Unlawful sexual intercourse (PC 261.5). In fact, PC 264(c)(2) states: "(2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years", which would seem to fit the 7 year sentence that the guy received.

    Without knowing what the guy was actually convicted of, this is, of course, all conjecture.
     
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  16. adjusterjack

    adjusterjack Super Moderator

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    Then, nothing. Your brother will have to save up until he has enough money to hire one. Expungement, even if possible, isn't going to happen without an attorney.
     
  17. zddoodah

    zddoodah Well-Known Member

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    Sorry...I guess you were present for the communication. I wasn't.
     
  18. Redemptionman

    Redemptionman Active Member

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    I don't think expungement will happen at all but it is worth a shot. More than likely this will require a pardon from the governor.
     
  19. Mmurf

    Mmurf Law Topic Starter New Member

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    Tried in jevenile court with an adult coviction (i think). He was tried in juvenile court (no jury) and received the maximum 7 year sentence in CYA (correctional youth authority) and it was a felony conviction.
     
  20. Redemptionman

    Redemptionman Active Member

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    Which is what I thought, you can try expungement pay the money and have it denied 2-3 times then throw it up to the governor for a pardon. I feel for your situation but it is what it is. Lots of corporate law firms specialize in this sort of thing. Find one and fight it, you are looking at years possibly up to 10 or more in order to see a positive result. That is IF he stays clean and is a good boy/ citizen with no more felony or misdemeanor charges during that time.

    Good Luck!
     

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