The most publicized comes out of New York State.  In November 2011, two students turned themselves in after being charged criminally for receiving payments to impersonate other students who were taking the ACT or SAT examinations.

Michael Pomerantz, 18, and an unidentified teenager turned themselves into Nassau County prosecutors before being taken to district court for arraignment. Pomerantz is one of five current or former students at Great Neck-area public and private high schools charged with accepting payments of between $500 and $3,600 to impersonate other students on SAT and ACT college entrance exams.

More recently, hundreds of high school seniors who attend a highly regarded high school in Dallas, Texas are also being accused of cheating.  According to the Huffington Post more than 200 students are implicated.

Now, officials at the southeast Houston Clear Creek Independent School District are investigating how around 200 students at Clear Lake High School acquired test answers before the exam in December.

Educators at Clear Lake realized that about a third of the exams had identical answers. As a result, administrators nulled all 600 tests, and offered the students two options: take the test again or have their final grade calculated without a final exam grade.

It is unclear whether any of the Texas students will be facing criminal charges.  These cases do, however, raise the question of how similar incidents might be treated under California law.

The short answer is that high-school students who cheat on standardized tests in California could be charged with several crimes, including felonies.  The most obvious charge would be for forgery, which is defined in section 470 of the California Penal Code.  In addition, prosecutors could bring charges for False Impersonation, which is defined by Penal Code section 529, as follows:

529.  Every person who falsely personates another in either his
private or official capacity, and in such assumed character either:

1.  Becomes bail or surety for any party in any proceeding
whatever, before any court or officer authorized to take such bail or
surety;

2.  Verifies, publishes, acknowledges, or proves, in the name of
another person, ANY written instrument, with intent that the same may be recorded, delivered, or used as true; or,

3.  Does any other act whereby, if done by the person falsely
personated, he might, in any event, become liable to any suit or
prosecution, or to pay any sum of money, or to incur any charge,
forfeiture, or penalty, or whereby any benefit might accrue to the
party personating, or to any other person;
Is punishable by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in the state prison, or in a county
jail not exceeding one year, or by both such fine and imprisonment.

Emphasis added.

There are two aspects of the definition of false impersonation that are especially problematic as they apply to cases of alleged cheating on standardized exams.  First, the crime applies to conduct that is private.  Thus, the fact that the SAT is created and administered by a private company would appear not to matter.  Second, false impersonation is broadly defined to include any written instrument; prosecutors would likely argue that the exam itself is the written instrument.  Moreover, any person who was deemed to have benefited from the alleged cheating could be charged with entering a conspiracy to commit false impersonation.

The recent cases in New York and Texas suggest that prosecutors are less likely to view cheating on exams as purely private matters to be settled between the schools and the students.  Whether they realize it or not, California students who are caught up in allegations of cheating on exams may be taking legal risks that they and their parents often do not foresee.

The editorial does a decent job of laying out the terrible record that DJJ facilities have had. It also acknowledges that critics of the Governor’s plan are concerned that it will cause more juvenile cases to be filed needlessly in adult court.  The editorial tacitly acknowledges that this is a valid concern, but argues that this can be addressed by appropriate legislative action and monitoring.

The Legislature can prevent this by monitoring and penalizing counties that over-prosecute young people and by allowing for extended custody in local facilities of juveniles who commit more serious crimes.

Unfortunately, there are at least 125,000 reasons why the solutions proposed by the Times’ will likely fall short.  Simply put, once more juvenile cases are under the jurisdiction of the counties, there will be a strong financial incentive for counties to shift juvenile cases to the state court system.  A brief review of the recent legislative history in California shows why.

In June of 2011, the California legislature passed SB 92 which, in relevant part, said that if the state’s revenues fall short of projections for 2011, “tier 1 trigger cuts” would go into effect on January 1, 2012.  One of these trigger cuts was the shifting of the costs of DJJ commitments from the state to the counties.  Specifically, $125,000 is shifted to the county each year for every juvenile a county sends or had previously sent that is still in the custody of DJJ.  Approximately three months later, California’s collected revenues fell short of the legislative projections, and Governor Brown announced that the Tier 1 trigger cuts go into effect.

So what do the counties do when faced with the prospect of taking on the financial responsibility for handling juveniles that are currently on the books of the state?

Predictably, on December 7, the California State Association of Counties, the California District Attorneys’ Association, and the Chief Probation Officers of California wrote a letter to Governor Brown in which they explicitly indicated that shifting the financial burden will likely cause more juvenile cases to be filed in the adult system.

“. . . we write to express our gravest concerns regarding the trigger cut provision in SB 92 . . . that would require, beginning January 1, 2012, that counties pay $125,000 annually for every youthful offender committed to a department of Juvenile Justice (DJJ) facility, irrespective of commitment date.”

. . .

We see several potential consequences to the system that might follow.  First, by making a DJJ commitment prohibitively expensive, the state could likely see an increase in adult court proceedings for youthful offenders, reflecting the fact that a local option either may not exist or may not be viewed as inappropriate given the severity of the crime. . .“

It doesn’t take a rocket scientist to see that the counties had every incentive to avoid the $125,000 annual per-inmate cost.  The Governor’s January 2012 response strongly suggests that he didn’t think that the counties were bluffing.  He announced that collection of payments from county would be delayed.  As reported by the San Francisco Chronicle, the Governor is now proposing that the DJJ be scrapped entirely and, as of January 2012, that no new juveniles would be sent to DJJ.  Kids who are currently in DJJ facilities would serve out their sentences).  The Governor’s plan also calls on counties to determine how to house their most serious juvenile offenders, and the state will provide $10 million to each county to help set up their new systems.  This is just a plan and there is no guarantee that it will ever become reality.

The fact that the New York Times editorial has its shortcomings doesn’t mean that I am in favor of the existing system.  The DJJ is far too often a disaster, and while some improvements have been made over the past few years, it is still dreadful. It’s only useful in cases where a juvenile is likely to lose at the fitness hearing.  In that circumstance, it may make sense to reach a plea agreement with the prosecutors because the DJJ is still better for juveniles than adult court, and the corresponding potential state prison sentences.

In theory, this could be an opportunity for us to reinvent the juvenile justice system in California so that it provides real community-level services and supervision that is tailored to local populations.  There are several reasons why the shift to a more county-based system may not have the results projected by the editorial’s authors.  First, counties are already dealing with an influx of adult state prisoners from the criminal justice realignment plan (non “strike” offenders now do their time in county jails).  It is anticipated that criminal justice resources at the county level are going to be stretched thin and county jails will be overcrowded.

Second, it is hard to see how the juvenile system won’t continue to be an afterthought in the criminal justice system.  The $10 million payout from the state is nice and all, but that’ll be gone quickly and then what?  DA’s will resort to direct filing in adult court rather than leaving the decision to the juvenile court, why?  Because of under realignment, the types of cases that get direct filed are generally not eligible for county jail sentences. This means that most courts would send a kid off to state prison – this keeps him off the county books in either a juvenile court or adult court scenario.

While juvenile cases in adult court may be politically unpopular in some communities (and I think unethical and immoral), nobody has ever lost an election being “tough on crime.”  Moreover, voters and would rather pay for playgrounds and after school programs rather than find a rehabilitation solution for a 16 year-old convicted armed robber.  Given that the more violent juvenile cases tend to be in the DJJ system, I would be surprised if, beyond the financial incentives, counties showed much appetite for taking on additional serious cases.  It is heartening that the New York Times editorial board has chosen to focus on the state of the Juvenile criminal justice system in California.  I do welcome the attention that such an editorial brings. But no amount of “monitoring” is going cause counties to file fewer juvenile cases in state court.  This is a problem that will require amending the underlying statutory framework.  Given the current political and budgetary environment in Sacramento, that unfortunately is a long shot.

The non-medical use of prescription drug use among teens, however, remains alarmingly high.  Fifteen years ago, the non-medical use of prescription drugs by teens wasn’t perceived to be a problem by policymakers or law enforcement.  Now, the non-medical use of Ritalin is approximately the same as teen use of cocaine, and less than half as prevalent as the use of some other prescription drugs.  For example, between eight and ten percent of high school seniors reported that they have used either OxyContin or Vicodin in the past year for non-medical reasons.

Parents and their teens are often blind to the serious legal risks that come from misusing prescription drugs.  Such drugs are often perceived as safer to use than illegal drugs because they can be obtained through a prescription.  But that’s not how the law sees it.  OxyContin is legally classified as a narcotic; Vicodin is classified as an opiate, as is heroin.  It is a criminal offense to use these drugs without a prescription and prosecutors have brought charges for the sale and distribution of such drugs to others.  This is especially problematic for high-school seniors who may be charged as adults if they are 18 or older.

According to the report, approximately three-quarters of prescription drugs that are used for non medical uses are obtained from family or friends.  Sometimes these drugs come right from the parent’s medical cabinet.  The Survey results indicate that teenagers are much more likely to get prescriptions drugs for free from a friend or relative than buy it from a stranger or a dealer.  For example, between 2009 and 2011, almost three quarters of high-school seniors who used prescription drugs for non-medical reasons reported that they received tranquilizers from friends or family for free at least once during the prior 12 months.  By contrast, only a quarter of such students reported buying tranquilizers from a stranger or dealer.  In fact, teens are more likely to buy prescription drugs from friends or family than from strangers.

But that is not how prosecutors in Southern California tend to view it.  They tend to err on the side of charging teens with possession of prescription drugs with an intent to sell such drugs.  There are several scenarios in which this takes place.  For example, a kid gets his or hands on a bunch of Adderall, Ritalin, or Oxy and stores it in improper packaging – a ziploc baggie or a pill bottle with the prescription label peeled off.  When the police find it, they arrest the kid on suspicion of possession for SALE of a controlled substance.  Most District Attorney’s in juvenile court file the case accordingly.  This also happens when kids “trade” pills with each other – so a kid can get caught with a mini-pharmacy of sorts (a few Ritalin, some Oxy, some Vicodin, etc.). This will also likely be charged as possession for sale.

In either scenario, the quantities of pills don’t have to be that high.  Juveniles have been charged with an intent to sell drugs even if, at the time of the arrest, the police found as few as a dozen pills.  Even though the reality is that these kids ARE using it for personal use, the District Attorneys don’t see it that way.  They will look at the number of pills, the fact that they are separately bagged, that there’s a variety, and if they find ANY amount of money on the kid – even a hundred bucks–they will allege that the money was proceeds from narcotics sales and use it to bolster the charge.

While every drug-related conviction has potentially serious consequences for teens, this is particularly true if the conviction involves possession for sale.  Once someone is convicted of such a charge, they are branded by the courts and probation department as a drug dealer.   This in turn makes it much more difficult to get off of juvenile probation.

I’ve also seen this happen with kids who bring tools to school and are charged with possession of a weapon.  These are all incidents that could have and should have been resolved at the school level, but for whatever reason were escalated to involve the police and ultimately, the courts.

So what to do if your child is caught in this situation?  The first thing you need to do is deal with the reality of the situation.  This case is NOT going to go away on its own.  You are not going to be able to go into court and “explain things to the judge” in order to get the case dismissed.  It simply does not work that way. To even have a shot at getting rid of the case and avoiding your child from admitting anything, you need to act quickly.

First, you need to contact an attorney who knows what he or she is doing in juvenile court (read more about that here).  There are ways to “walk back” a case so it dos not get filed and is instead handled through an informal diversion program. This usually requires workign with the attorney you hire to put together a presentation for the DA’s office showing who your child is: Report cards, certificates of achievement, letters of support from teachers, community members, family members, and family friends.

Your lawyer will then contact the DA’s office in an attempt to prevent the case from being filed.  Even if this is not successful and the DA’s office does file a case, at least the groundwork is laid for your child’s attorney to make a pitch to the judge to handle the case informally.   Sometimes the DA can even be prevailed upon to recommend diversion even after the case is filed.  It all depends on the facts of each individual case.  Every case is different.

Bottom line:  If you have a good kid who got caught in a bad situation, be proactive, contact a qualified attorney as soon as you possibly can.

Obviously, this is a blog promoting my law firm and this is intended as general information and not specific legal advice.  If you would like to contact me to discuss your child’s specific case. Please call The Law Offices of Jerod Gunsberg for a free consultation at (310) 210-0744.  

Why is this?

Under California law, if as a juvenile you had a petition sustained against you for a criminal offense listed under Welfare and Institutions Code Section 707(b) and the offense was committed after you were 14 years old, you cannot have your record sealed.

Unfortunately, the California Supreme Court has determined that the expungement/dismissal statute (PC 1203.4) does not apply to juvenile cases. If you are really interested, check out a case called In Re Chong K (2006) 145 CA4th 13.

Here’s an even more ridiculous situation:  If you went to the Youth Authority (now called Division of Juvenile Justice) and successfully completed time there, once you were paroled your case could be dismissed pursuant Welfare and Institutions Code Section 1772.  But someone who was committed of the same offense, but only sent to a probation camp instead of YA/ DJJ is NOT eligible to have the charges dismissed.  Yes, you read that right.  Because someone is given a less severe punishment (camp) rather than a more severe punishment (YA /DJJ), that person penalized for it now.

SOLUTIONS

So can anything be done?  It depends.  Some courts might be willing to reduce an “unsealable” charge down to a “sealable” charge.  For example:  A court might be convinced to reduce a robbery (Penal Code 211) down to grand theft (Penal Code 487 (a)-(c)).  The robbery is not sealable, the grand theft is sealable.  There are numerous other scenarios, this is just one example.

There is no legal procedure or provision in any code section that allows the sealing of unsalable juvenile records.  It is done in the court’s discretion and in the vast majority of cases, it is helpful for the DA to sign off on it as well.

This is not an easy process, but it can be done under the right circumstances.  The right circumstances usually include that you’ve not picked up any adult cases (or any adult case was very minor and happened a long time ago).  This takes a lot of work and fortitude, but it can be done.

If you would like to contact me to discuss the matter, I will review the case free of charge and can tell you whether or not there is even a possibility that this can be accomplished.  I am a qualified Los Angeles juvenile defense attorney. You can contact my office at 310-210-0744 if you wish to discuss it further.