December 2021 Cover Story - A Note About Collateral Criminal Proceedings

by Alan J. Crivaro

The Final Report of the California Paraprofessional Program Working Group established by the Board of Trustees of the State Bar made recommendations in the practice area of criminal law. The Report recommended paraprofessionals be limited to practice only in collateral criminal matters. The specifically included tasks were defined as expungement and reclassification of convictions and in-court representation of defendants charged with infractions. Here is the essence of what these recommendations mean.

Expungement and reclassification proceedings are governed by statute and are generally initiated by the completion, service and filing of Judicial Council forms. The current Judicial Council forms are designed to be used by both counsel and pro per individuals. Such proceedings request the court exercise its discretion by vacating a conviction, entering a plea of not guilty, and the dismissal of the charge. Reclassification proceedings petition the court to reduce a felony conviction to a misdemeanor. Expungement is particularly useful for those seeking employment under “ban the box” legislation, which forbids employers from asking whether an applicant ever was convicted of a crime, but does not prevent employers from conducting background checks. Except for a few statutory exceptions, most employers are prohibited from considering expunged criminal convictions in their hiring decisions.

In addition to expungement and reclassification of convictions, the proposed paraprofessional program further recommends permitting paraprofessional in-court representation for those individuals charged with infraction offenses. An infraction is not punishable by incarceration. A person charged with an infraction is not entitled to a jury trial. Court-appointed legal representation is not provided unless the person is in custody at the time of the arraignment. Privately retained counsel is permitted. Commonly charged infractions involve traffic violations and are generally handled by citation. The proposed program does not expressly limit representation to simple traffic matters. Infraction offenses may arise under a number of situations involving violations under various state and municipal codes. Multiple infraction convictions incurred over a certain time period can result in misdemeanor charges, possible administrative sanctions, and even professional licensing consequences.

Despite the educational training required by the paraprofessional prior to representation in collateral criminal matters, questions arise as to whether such background will sufficiently enable the paraprofessional to competently advise the client as to the possible ramifications of a selected course of legal pursuit. Even purportedly “simple” traffic infractions can under certain circumstances have grave consequences as to the retention of an individual’s driver’s license or the premium rate for auto insurance. While the paraprofessional may represent an individual at the trial of the traffic offense, such representation does not extend to any administrative proceedings such as hearings before the Department of Motor Vehicles. Lastly, the Report recommends that the paraprofessional not be permitted to file a notice of appeal to or appear before the appellate superior court, thus leaving the client in a pro per status after an adverse verdict.

Alan J. Crivaro is a private criminal defense lawyer in Newport Beach. He formerly served as a Senior Deputy Public Defender in Orange County for more than 28 years where he had trial and appellate counsel assignments. He is the co-author of three chapters in California Criminal Law: Procedure and Practice published by CEB. He can be reached at acrivarolaw@hotmail.com.