Tooby's California Post-Conviction Relief for Immigrants

Under California law, it is questionable whether the Ex Post Facto clauses of the state and federal constitutions will be interpreted to require the court to grant old-style no-plea expungements as to offenses that were committed prior to the change in the law.  The amendment to Penal Code § 1203.4, eliminating as of January 1, 1998, the availability of expungement to erase certain listed sex offenses, applies to all petitions for expungement filed after that date, even where the person committed the offense and pled guilty before that date, and pled guilty in reliance upon obtaining an expungement to avoid deportation.  The court must deny expungement under Penal Code § 1203.4 as to a conviction for violating Penal Code § 288(a), even though the conviction predated the change in the law excluding the offense from the expungement statute and the defendant argued to do so was prohibited by the ex post facto clause of the United States Constitution, because the court held the expungement was not an aspect of punishment and the new legislation did not increase the defendant’s sentence.[40]

            There is, however, an excellent argument that California law is wrong on this point.  Current United States Supreme Court law should be checked on this issue, as its interpretation of the Ex Post Facto Clauses of the United States Constitution may well be far stronger than that recognized by California courts.[41]  The recent decision, which affirmed the power of federal courts to impose a supervised release term, may benefit some California defendants.[42]

[40] People v. Acuna (2000) 77 Cal.App.4th 1056, following People v. Castellanos (1999) 21 Cal.4th 785 (Penal Code § 290 registration is not punishment for ex post facto purposes).

[41] See Robert Pauw’s excellent article, A New Look at Deportation as Punishment: Why at Least Some of the Constitution’s Criminal Procedure Protections Must Apply, 5 Bender’s Immigration Bulletin, No. 11, p. 475 (June 1, 2000).

[42] Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795 (2000).