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After someone has served their punishment for a crime, their conviction can prevent them from moving on. It can make it harder for them to get hired for jobs. It can stop them from finding an apartment. It can make it harder for them to get loans and insurance.
That’s why, under California law, probationers and others who have completed their sentence have the option of getting an expungement, a legal way to clear their record of a conviction and start a new.
Specifically, California Penal Code section 1203.4 provides that, certain probationers, once they have completed the terms of their probation, can petition to the court to withdraw a conviction—or a plea of guilty or nolo contendere. If the court agrees, the court will dismiss the charges against the probationer.
While expungement is not a particularly drawn-out procedure, judges have an enormous amount of discretion when deciding if they will grant an expungement. That’s why petitioners should have an experienced criminal defense attorney represent them throughout the process.
The Law Offices of David S. Chesley ensures that its clients present the best possible case for why they deserve an expungement, making sure that the petition complies with all procedural and substantive requirements.
Contact us at any time to discuss your case. In the meantime, the following questions and answers will provide prospective petitioners with a better understanding of the expungement process.
Once a petitioner has received an expungement, in most cases, they do not have to reveal a criminal conviction to employers. They can say “No,” if employers ask if they have ever been convicted of a crime.
An expungement removes the conviction from public background checks. Therefore, it should improve the petitioner’s ability to rent an apartment, obtain a credit card, and afford insurance. Expungement can also improve the likelihood of being accepted into private colleges and obtaining student loans.
An expungement is also significant for those hoping to obtain a professional license. An expungement does not obviate the responsibility of disclosing a conviction to a licensing board when applying for a state license; however, the license review board can take the dismissal into account when reviewing the application.
Expungements can end a requirement to register as a narcotics offender. If someone has received an expungement, their conviction can’t be used to impeach them in court, unless they are the defendant in a subsequent case.
Who is eligible?
To be eligible for an expungement, all the following must apply:
If probation was a term of release, petitioners usually must have fulfilled all of their probation obligations before obtaining the expungement. There are some exceptions to this rule, however, if the petitioner was discharged before termination or if relief should be granted in the interest of justice.
If probation was not required, then the petitioner must show they have lived an honest and upright life, without other criminal offenses, since completion of their sentence.
Are there reasons I might not be eligible?
Expungement is not available if any of the following apply:
Some crimes are also ineligible for expungement, including:
Nevertheless, if the petitioner was convicted of a felony before the 2011 “realignment” of state prisons and county jails, they may still be eligible for expungement.
If the prosecutor charged the petitioner with a felony, but they could have charged the crime as a misdemeanor, the petitioner can ask the court to reduce the charge to a misdemeanor. The petitioner may make this request either before petitioning for the expungement or in the same filing.
It is possible to get an expungement before finishing probation. In that case, the petitioner must convince the judge that expungement is in the interest of justice. To do so, they will need to different forms for the petition, and they must provide supplementary documentation explaining the justification for the early petition.
An added benefit of filing for an expungement for probationers is that their probation will end early—when the court grants the expungement.
I have been working as a firefighter with the California Conservation Camp program. Does that help my case?
Yes, if a petitioner completed participation in the California Conservation Camp program as an individual hand crew member, they can ask the court to expunge their conviction.
Also, once the petitioner has been released from custody, they are eligible for an expungement. They do not have to complete probation, parole, or supervised release before the petition is granted.
Hire an attorney: While it is not mandatory to have a lawyer, expungement is a highly technical process. Chances of success are much greater if a petitioner is represented by a criminal defense lawyer—and it’s best to have one with extensive experience in expungement proceedings.
Obtain your court file: The petitioner must submit a copy of the original court file in the application. If the case involved a misdemeanor, a court can destroy files for misdemeanors cases that were completed five years earlier. Therefore, if the court has destroyed the file, this does not mean that the petitioner’s case has been sealed. Instead, this file destruction only relates to the court’s file management system. A copy of the documents should still be available from the Sacramento office of the Department of Justice upon request.
Prepare and File Necessary Petitions: A petition for expungement must be filed in the same court where the petitioner was convicted. The petitioner must file the petition, a work up sheet, and any supporting documentation.
The forms must be entirely filled out, including all the required information and with the correct forms. The petitioner must prepare copies of the documents for the court, probation, the prosecutor, and the Department of Justice, as well as pay court fees (usually $60-150) for each conviction the petitioner asks to be dismissed.
Notice to Prosecutor: The prosecutor must receive the petition at least 15 days before the hearing.
Records Check/Probation Review: Investigators will confirm the accuracy of the petition by a records check. They will make sure to confirm the petitioner completed probation with no issues, and there are no outstanding warrants or other convictions against them.
If the petition relates to a misdemeanor, and the probation office does not object to the petition, it’s likely that the petitioner will not need a hearing.
Court Review/Hearing: A hearing to review the petition is required for a felony conviction. A hearing for a misdemeanor conviction is not usually necessary. They are usually only necessary if either the probation office or prosecutor opposes the petition.
The petitioner does not need to be present at the hearing; their attorney can be there for them.
Processing Time: The court usually takes four to eight weeks to process a petition.
Criminal Record Updated: If the judge grants the petition, the petitioner’s criminal record will not be sealed or destroyed, but the record will be updated that the case was dismissed, per Penal Code 1203.4.
There are limitations to the power of an expungement.
Even after being expunged, the conviction is not removed from the petitioner’s criminal record (“rap sheet”) either for the state of California or with the Federal Bureau of Investigation (FBI). Instead, the record will include both the conviction and the Penal Code 1203.4 dismissal.
Additionally:
There are other options, but the best alternatives are often things to do, in addition to expungement, rather than in lieu of it.
1. Seal and destroy records: Sealing and destroying records removes a conviction from someone’s criminal record. However, conviction generally precludes someone from being able to seal their conviction. Therefore, they would likely have to prove they were factually innocent of the crime. This can be a very difficult bar to meet.
2. Certificate of Rehabilitation: If a petitioner learns that they are not eligible for an expungement, because they were sentenced to prison for a felony, they can petition for a Certificate of Rehabilitation. While less powerful than an expungement, the certificate can restore some of the rights lost due to the conviction.
On the other hand, if a petitioner is eligible to have the conviction expunged, then they may want to pursue a Certificate of Rehabilitation after their record has been expunged, to further improve their record.
3. Pardon from the Governor: Pardons from the governor are rarely granted, and usually only for exemplary behavior, following at least 10 years after release from custody. While a pardon will release someone from ongoing punishment, it will not result in the conviction being removed from their record. Thus, if someone is eligible for a Certificate, they should file for that before applying for a pardon.
As you can tell, filing an expungement can become very complicated, because each filing must be done in a precise way and in the right order, to give you the best chance at a new start. That’s why you want experienced counsel, such as the lawyers at the Law Offices of David S. Chesley. Contact US today to discuss your case.
