Expungement is a legal process that allows you to remove your criminal charges from your record, thus freeing you from all the penalties and disabilities a criminal record imposes. Therefore, you can deny having a criminal history on a job application. Additionally, expunging your criminal conviction allows you to withdraw your guilty plea and enter a not-guilty plea. Therefore, if anyone runs a background check on you, the results will show the charge or charges were dismissed. The benefits also include easier access to credit, housing, or other social benefits convicted individuals cannot access because of a criminal record. Furthermore, you can secure or maintain your professional license or join a professional organization post-conviction.
In short, expungement helps you reimagine your life and achieve your goals post-incarceration. However, you can only access this benefit if you understand the expungement process. We at Los Angeles Criminal Attorney are here to assist you. Contact us for more information.
Expungement Under California Law
Penal Code 1203.4 allows individuals to withdraw a guilty or no contest plea and re-enter a not guilty plea. Changing your plea allows the courts to dismiss your case if they grant your application. The process is not clear-cut. There are specific qualification criteria and a procedure that you must follow. Only then can the courts grant your request.
Let us first start with those who qualify to have their records expunged.
Individuals Eligible for a Conviction Expungement
Penal Code 1203.4 allows both misdemeanor and felony offenders to apply for expungement. However, you only qualify if you:
- Completed your misdemeanor or felony probation, and
- You presently are not:
- Charged with a crime.
- Serving a sentence for the crime, or
- On probation for the crime.
PC 1203.4 requires applicants to have completed probation. The statute’s actual language is successfully completed probation. You complete probation when:
- You committed no new offense while on probation.
- You met all your probation terms, which include paying restitution fees and fines and completing community service and counseling programs.
It is important to note that you do not generally qualify for expungement if you served a prison sentence after the judgment on your offense or because of a parole violation. However, if you completed a jail sentence instead of prison time courtesy of the realignment law, Assembly Bill 109, you qualify for expungement.
Further, Assembly Bill 2147 allows individuals who have their parole waived because they worked as firefighters through the prison fire camp to be eligible for expungement.
Individuals Not Eligible for Expungement
To recap, if you served a prison sentence for an offense, you generally do not qualify for expungement. Additionally, you are ineligible for expungement when you commit certain felonies and sexual crimes against children, which include:
- Statutory rape, an offense under Penal Code 261.5(d) — You will face prosecution under PC 261.5 when you have sexual intercourse with a minor younger than 16 years, and you were at least 21 years old at the time you allegedly committed the crime.
- Sodomy against a minor, a violation of Penal Code 286 — Sodomy, is sexual conduct involving one person’s penis coming into contact with another person’s anus.
- Oral copulation with a minor, which is a violation of Penal Code 287(c) — This statute makes it a crime for any individual to engage in acts with a minor where the individual’s or child’s mouth comes into contact with the offender’s or minor’s vagina, penis, or anus. Further, the law requires this contact to be achieved by duress, fear, menace, violence, or force.
- Forcible sexual penetration with a child under 14 years, a crime under PC 289(j).
- Engaging in lewd conduct with a child, which violates Penal Code 288 — Any touching of a minor, under 14 years at the time, for sexual purposes will result in prosecution under PC 288.
- Possession of child pornography in violation of Penal Code 311 — Possessing, advertising, sending, transporting, printing, or duplicating child pornography or persuading or hiring minors to make pornographic content is a crime.
- Failure to stop and submit to an inspection in violation of Vehicle Code 42002.1 — This statute mandates all commercial drivers to stop and submit to legally-mandated equipment inspections.
- Particular misdemeanors or infractions under Vehicle Code 42001.
A probation violation could disqualify you from eligibility for expungement since the law requires you to complete your probation successfully. However, the courts could hear your request through a special hearing and determine if you qualify for expungement.
Court’s Discretion to Dismiss Convictions
Courts exercise significant discretion on whether to grant or deny expungement petitions. Judges consider several factors, including:
- Your criminal history
- Your performance while you were on probation
- The severity of the underlying offense
- Additional evidence showing support on why you deserve relief:
- Your family’s support
- Strong ties to the community
- An opportunity to secure meaningful employment
Eligibility for Expungement Under Prop 47
California voters passed the Safe Neighborhoods and Schools Act, effectively reducing the penalties theft and drug offenders receive. The proposition, adopted on November 5, 2014, changes certain offenses, previously felonies or wobblers, to misdemeanors.
Wobbler offenses refer to crimes prosecutors can pursue as misdemeanors or felonies.
The offenses previously considered felonies or wobblers affected by Prop 47 include:
- Shoplifting — A crime under Penal Code 459.5
- Forgery — An offense under Penal Code 470
- Writing bad checks — A crime under Penal Code 476a
- Grand theft auto — A crime under Penal Code 487(d)(1)
- Grand theft of a firearm — A crime under Penal Code 487(d)(2)
- Receiving stolen property — An offense under Penal Code 496
- Receiving stolen property — A crime under Penal Code 496
All theft cases have a threshold: the value involved does not exceed $950
- Possession of controlled substances — An offense under Health and Safety Code 11350
- Possession of concentrated cannabis — An offense under Health and Safety Code 11357
- Possession of methamphetamines — An offense under Health and Safety Code 11377
You are eligible for expungement if you served a jail sentence for any of the above felonies or wobbler offenses before the enactment of the Safe Neighborhoods and Schools Act.
However, the court will exercise discretion to evaluate a candidate’s request. The judge grants the request if satisfied that the decision is in the interest of justice. Judges also consider the following before deciding:
- At least two years have passed since you completed your sentence, and
- You are not:
- Charged with committing a crime
- Serving a sentence for any crime
- Under supervised release for any offense
- On probation for any crime
How to Secure an Expungement Under PC 1203.42
Any expungement filing under Proposition 47 is done per Penal Code 1203.42.
The expungement process under PC 1203.42 starts with filing a petition with the courts. You can apply in person, through your attorney, or with a probation officer’s authorization. Upon receiving your requests, the courts can either:
- Allow you to withdraw your no contest (nolo contendere) or guilty plea and enter a not-guilty plea, or
- Set aside your guilty verdict if you were convicted after pleading “not guilty.”
Both options dismiss the accusations levied against you. Additionally, you will be freed from all penalties and disabilities a conviction imposes, similar to the benefits a PC 1203.4 expungement grants.
When Can I File a Petition to Have My Records Expunged?
You can file a petition to have your conviction expunged in the following ways:
- You can file the petition immediately after completing your probation. If the courts discharge your probation before the probation term ends, Penal Code 1203.3 allows you to file the petition immediately after your probation ends.
- If you were convicted of an infraction or misdemeanor, but the courts did not impose probation terms, you will have to wait for a year from the date of the judgment before filing the petition.
- If the underlying offense is a felony covered under the Realignment Act, you will have to wait an additional two years before initiating the process.
The period can be confusing. It is best to contact the Los Angeles Criminal Attorney team for help.
The expungement process can be complicated. There are a few steps to consider to reduce the complexity and help you better understand the process.
1. Hire an Attorney
Expungement is a complicated process. It is time-consuming and requires several hearings before the judge issues the final decision. You need assistance from an individual who comprehends the laws and statutory requirements to petition the courts to expunge your records successfully. That is why hiring an attorney with experience with expungement is crucial.
Choosing which attorney to enlist the services of is challenging. You can consider a few factors in your decision to ensure you only hire the best. They include the following:
- Ensure you enlist the services of a licensed attorney — You will come across several websites that purport to offer legal services. Some are not governed by the California state bar. You risk being defrauded if you share your personal information on these sites.
- Check the attorney’s websites for reviews about the services he/she offers. Additionally, do not restrict your inquiry to website reviews. Consider having in-person conversations with past clients about the attorney’s services.
- Engage the attorney directly and evaluate his/her comprehension of your case and the solutions he/she provides — Direct conversations help gauge the attorney’s mastery of expungement, which, compared to other attorneys, will help you determine their suitability.
With the right hire, your expungement process will be easier than having to do it yourself or decreasing your chances of filing a successful petition by enlisting the services of a non-experienced attorney.
2. Fill Out Complete and Proper Forms
Every situation requires a specific form. Additionally, the expungement application forms are also particular to the relevant courthouse. You have to obtain and fill out the correct documents. The courts provide specific forms for every situation. Experienced attorneys are familiar with this. Further, each expungement application form is to be obtained and submitted at the relevant courthouse.
For example, you file a petition to dismiss a misdemeanor conviction under PC 1203.4 after completing misdemeanor probation. You will fill out an application to terminate probation if you have not completed your probation. If the courts deny your application, you can file a petition for dismissal.
Early Termination of Probation
PC 1203.3 allows judges to secure early termination of an applicant’s probation. Judges could issue this relief after considering an application by your attorney at least two days before the hearing date. Further, your attorney should communicate with the prosecutors about your case. He/she will outline the following in the meeting:
- Explain why you qualify for early termination, and
- Request the prosecutor to support the motion or not oppose it
Some of the reasons that steer a judge into granting early termination of your probation include the following:
- Complying with all the terms and conditions issued for your probation — Some of the probation terms include community service, completing counseling sessions, attending DUI education programs, or complying with specific gun restrictions and protective orders. The judge assesses your performance on the terms and is more likely to be persuaded if you complete the terms ahead of schedule.
- Pay restitution and fees — You must pay all court fees and restitution sums owed to the victims.
- Avoiding arrests for new charges when out on probation — Not engaging in criminal activity while on probation is a good sign that you comprehend the gravity of your situation. Further, it indicates your efforts to rehabilitate yourself by not engaging in criminal activity.
As for felony convictions, expungement is generally granted when judges reduce the felony to a misdemeanor. The courts will grant this request if the crime is a wobbler and you were convicted on felony charges. If your felony is a non-wobbler, the court will only reduce your felony charges to misdemeanors after you have made your request per Penal Code 17(b)(3).
A PC 17(b)(3) motion seeks to reduce a felony to a misdemeanor. A petition under PC 1203.4 then follows this application.
Each conviction requires you to fill out a form. Further, include character references to improve your chances of the courts granting your request.
3. File for Expungement
After filling out all the forms, you must file for expungement with the court that heard your case. Courts usually respond within five months. Every court has its policies and fees. Some courts will require the application to be hand-delivered. Others allow applicants to mail their petitions.
Courts impose strict timelines to grant the petition. In this respect, it is worth noting that you must serve the District Attorney’s office with a 15-day notice before the hearing date. This lengthy time frame allows the prosecutors to review the case and object if they so wish.
Courts also offer reprieve to the indigent. It provides financial aid to cover the filing fees.
4. Preparing for the Hearing
Some cases require you to attend the sessions in person. In others, your attorney can attend in your place. Familiarizing yourself with the court’s requirements is part of the preparation needed for the hearing. Your attorney will also inform you of any issues you need to know about in preparation for the hearing.
Some of the evidence your attorney could collect in readiness for the hearing includes the following:
- Proof of employment
- School transcripts
- Proof of volunteering
- Your job training records
- Treatment program report
- Proof of counseling attendance, and
- Letter s form from probation officers, clergy members, employees, or school officials.
Once your attorney submits the evidence, the judge assesses the petition's merits. The expungement petitions are a judge-led process. There is no jury.
Judges grant expungement petitions in the following scenarios:
- The applicant has held on to a job for long enough
- The applicant has no additional convictions on his/her record
- The applicant has completed the required community service hours
5. Refiling if the Petition is Denied
You can refile for expungement six months after the judge denies your initial request. Work with your attorney to identify and include any variations necessary to ensure your request is granted.
Your attorney will seal the case if the judge grants the request. PC 851.8 provides two years for you to petition the courts to seal your records.
Sealing ensures your conviction is no longer available to the public. Thus, your conviction will not appear on any criminal background checks.
Sealing your records involves three key steps:
- Filling out the petition in the county or city you were arrested in
- Serving the petition to the local prosecutors and the law enforcement agencies that made the arrest
- A hearing where the judge decides on whether to grant the request
Sealing destroys particular records of your arrest, including:
- Your fingerprints
- Booking photos
- Police reports, and
- Rap sheet entities.
Note: Destruction is on paper and not available to the public. The courts could unseal the convictions if the state petitions the courts to do so in a subsequent case involving the defendant. Further, criminal justice agencies also access and share the arrest records with law enforcement agencies as if the records were not sealed.
It is worth noting that, whereas a judge can grant a seal request, he/she is likely to deny the request if the conviction is related to child abuse, domestic violence, or elder abuse. However, the judge could grant the request if it is in the interest of justice.
After the courts grant your seal request, you can deny having a criminal record in several situations. However, the exceptions to this norm apply to the following circumstances:
- When you are a candidate running for public office
- When applying for employment with the California Lottery Commission
- When applying for a state license
If the courts deny your subsequent expungement request, you can apply for the following:
- A certificate of rehabilitation,
- A Governor’s pardon, or both
Both are post-conviction relief alternatives.
Benefits of an Expungement
Expungement offers several benefits to individuals. Some of the notable ones include the following:
- Ease in obtaining a California professional license
- An employer cannot discriminate against your job application based on your expunged conviction
- You can avoid particular immigration consequences like deportation
- The state cannot use expunged convictions to impeach your credibility as a witness in court unless you are a defendant in a subsequent case.
Limitations on Disclosing Expunged Convictions to Potential Employers
Expungement has become more critical now than at any point in history. In the past, it was unlikely that anyone other than law enforcement officers knew about your criminal history. However, information companies index criminal court records into a national database. Potential employers, professional organizations, and licensing agencies have access to the database. Therefore, your conviction is accessible if you do not apply for a PC 1203.4 expungement.
What an Expungement Will Not Do
Expungement benefits are also limited to specific scenarios. An expungement will not:
- Restore your gun rights
- Overturn a driver’s license revocation or suspension
- End the duty to register as a sex offender under PC 290
Additionally, courts could use expunged convictions to enhance sentences. For example, courts will consider an expunged DUI conviction as a prior if you face a subsequent DUI charge. The same principle applies in strikeable offense cases, according to California’s Three Strikes Law.
Is it Possible to File a Petition for Expungement and Early Termination at the Same Time?
Defense attorneys can package both petitions into one to expedite the expungement process. One typical example of this approach involves the court granting the following in a single proceeding:
- Granting an early termination of probation if the court is satisfied you have complied with the terms of your probation
- Reducing the felony to a misdemeanor, and
- Expunging your conviction
Find an Expungement Expert Near Me
You can successfully petition the courts to expunge your conviction with the aid of an experienced and professional criminal defense attorney. At Los Angeles Criminal Attorney, we credit our success in serving our clients to our experience and client-focused approach. Call our team today at 424-333-0943 for assistance.