§ 3.39 4. Correcting Errors in Criminal Histories
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Official criminal histories, or “rap sheets,” frequently contain errors that can be quite damaging to an immigrant. For example, a misdemeanor conviction may be wrongly recorded as a felony conviction. An error may cause a conviction of a crime which is not a crime of moral turpitude to appear on the rap sheet as an offense of moral turpitude. The sentence may be incorrectly recorded. It is very common for the FBI “rap sheet” to reflect an arrest for extremely serious offenses without showing that the charges were ultimately dismissed or resolved by a conviction for a lesser included offense.
Moreover, when post-conviction relief has been successfully obtained, it is important to make sure that the judgment is marked “vacated” or “expunged” in the relevant criminal history records of the client, so the immigration authorities can verify by their own independent records check that the client no longer has that conviction.
For instructions on how to do this, see § 10.52(B), infra.
Under both California statute and case law, clients have a right to a certificate declaring that an arrest was but a detention, if the client was released before seeing a magistrate or the district attorney declined to file charges. Such a certificate can be obtained from the arresting agency. Cal. Penal Code sections 849 and 851.6(a) (when police release an arrestee without taking him before a magistrate, the arrest shall not be deemed an arrest, but a detention only and the arresting agency shall issue a certificate with such a declaration); Cal. Penal Code sections 849.5 and 851.6(b) (when no accusatory pleading is filed charging [arrestee] with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only.); see Loder v. Municipal Court (1976) 17 Cal. 3d 859, 869 (The Legislature has provided in effect that a substantial proportion of arrests not resulting in conviction shall not be recorded as arrests but simply as detentions.); see Raphael Goldman, A Little-Known Entitlement for Suspects who are Detained but not Charged, California Attorneys for Criminal Justice Nuggets.