California Expungement and Federal Sentencing


Darren Chaker reveals there are two distinctions between the expungement provisions construed in United States v. Hidalgo, 255 F.3d 768, and those contained in California Penal Code § 1203.4(a). The first is that an expungement under § 1203.4(a) releases a defendant from all criminal penalties and disabilities “except as provided in Section 13555 of the Vehicle Code [related to suspension or revocation of driving privileges].” This is an explicit exception to the expungement statute such that, for example, a defendant whose driving privileges has been revoked may not regain driving privileges by virtue of expungement of the criminal conviction which caused the revocation. This exception has not application here.

The second distinction of § 1203.4 is the proviso in § 1203.4 providing for revival of an expunged conviction for purposes of pleading and proving an enhancement in a subsequent prosecution:

“however, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted – or the accusation or information dismissed.”

This exception has no application here either. This statutory language refers to specific procedures under California law for pleading and proving prior convictions. The “pleading and proving” prerequisite is in conformance with California statutory law which requires that a prior conviction may be used to enhance a sentence only if it is pleaded and proven; moreover, it is well-established that California law requires the defendant be given an opportunity to demand trial of the conviction before a jury:

“California … has granted defendants the right to have a jury determine the truth of such prior conviction allegations. [Citation omitted].” People v. Wiley, 9 Cal.4th 580, 590, 38 Cal.Rptr.2d 347 (1995); People v. Esquibel, 3 Cal.App.4th 850, 858, 5 Cal.Rptr.2d 47 (1992).

Thus, the requirement under § 1203.4(a) that the expunged conviction is revived only by pleading and proving the prior conviction in a subsequent prosecution means that without following the California procedure for proof of such prior convictions, the expunged conviction has not been revived.

Furthermore, under California law, as well as the general common law, the statute should be construed according to the maxim expressio unius est exclusio alterius:

“It is a familiar maxim of construction that where a statute provides a specific exception to a general rule, other exceptions are necessarily excluded.” Adams v. County of Sacramento, 235 Cal.App.3d 872, 880, 1 Cal.Rptr.2d 138 (1991) (discussing application of Penal Code § 1203.4 to employment status case).

Thus, there is no exception to the use of an expunged conviction as an enhancement in a subsequent case apart from the pleading and proof requirements set forth in § 1203.4(a). And this comports with current treatment of the subject by the United States Supreme Court.

The Supreme Court has reaffirmed that a right to jury trial extends to enhancements alleged against a defendant based on prior convictions. in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the United States Supreme Court held that

“under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id., at 243, n. 6.

Although Jones made an exception for a prior conviction alleged as an enhancement, it did not discuss the proof of a prior conviction which has already been expunged. Under California Penal Code § 1203.4(a), once the prior conviction has been expunged, it must be pleaded and proven anew in order to be used as an enhancement against the defendant in a subsequent prosecution. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court held,

“it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. it is equally clear that such facts must be established by proof beyond a reasonable doubt.” Id. at 2363, quoting Jones v. United States, 526 U.S. at 252-253.

Thus, under current Supreme Court treatment of recidivist punishment, as well as California statutory and case law, the revival of an expunged prior conviction would seem to present an issue of fact which must be determined by a jury.

Section 1203.4 freed defendant of all criminal “penalties and disabilities,” unless the prerequisites listed in the expungement statute itself are met. The two prerequisites are that an expunged conviction may be revived only for purposes of a future prosecution and only by the procedure of pleading and proving the prior conviction according to California law. § 1203.4(a). Neither prerequisite was here met.

The proviso of § 1203.4 that the prior conviction may be “pleaded and proved” in spite of the expungement establishes that without formal proof of the prior conviction, the set-aside continues to serve as an expungement. California law provides that a prior conviction must be alleged and proved before a jury in order to be counted as a prior conviction in a subsequent prosecution. Under Apprendi, the California procedure setting forth the means to count the prior conviction in a subsequent prosecution requires strict compliance with procedural due process. 120 S.Ct. at 2359.

So unless and until the prior convictions have been “pleaded and proved” in accordance with the revival mechanism set forth in § 1203.4, defendant’s expungements are indistinguishable from the expungement under-the provisions of California Welfare and Institutions Code § 1772(a), which Hidalgo held do not count as prior convictions under the sentencing guidelines. Hidalgo, 932 F.2d at 807. The expunged convictions were not revived and may not, therefore, be counted towards defendant’s criminal history score.

Previous articleCalifornia Terrorist Threats and Law of Attempts
Next articleFederal and California Courts Define Expungement
For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.