What is California Penal Code 1203.4 Expungement?
An Expungement is a post-conviction opportunity to release yourself from most of the adverse consequences of a conviction. It effectively “dismisses” your record of conviction. Hence, this is why Expungements are also commonly referred to as dismissals. The law effectuating Expungements in California is codified in Penal Code 1203.4 PC.
Are you eligible for a California Penal Code 1203.4 PC Expungement?
Whether or not your conviction is either a misdemeanor or a felony, you might still be eligible for a California Penal Code 1203.4 PC Expungement. But to be eligible for a California Penal Code 1203.4 PC Expungement, you must meet all of the following conditions:
- You have fulfilled all of the probation requirements that you were sentenced for the conviction you hope to get expunged OR You must have acquired an early termination of probation.
- You did not spend time in a state prison for the conviction you hope to get expunged OR You did spend time in a state prison for the conviction you hope to get expunged but if the crime had been committed after Proposition 47 realignment, then you would have spent time in county jail instead for that conviction.
You have completed probation if you have successfully finished all the following:
- Finished all of your terms and conditions, which may include financial sanctions, restitution, mandatory therapy, public service, etc.
- Appeared at all mandatory court hearings. This requirement can be completed directly or be done by your attorney.
- You did not commit any new crimes during the probationary period.
If you were sentenced with state prison time for a conviction or a probation violation, this does not necessarily mean you cannot get a California Penal Code 1203.4 PC Expungement. There is an exception for those who would have served time in a county jail had their conviction occurred after California passed Proposition 47’s realignment bill. (See more discussion below)
Note, however, that it is still possible to get a California Penal Code 1203.4 PC Expungement even if you violated probation. You (or your criminal defense attorney) can request the court conduct a special hearing. At this hearing, the judge will consider evidence regarding whether or not you are worthy of expungement. The law gives judges a wide range of latitude in determining whether or not to bequest a California Penal Code 1203.4 PC Expungment. The following are some of the more common factors a judge considers in making the determination. Keep in mind the list is not exhaustive: your holistic performance when accomplishing the probationary terms and conditions, the seriousness of the offense that lead to your baseline conviction, and your complete criminal record. You (or your Criminal Defense Attorney) are also allowed to present any evidence you think is relevant to why you might be worthy of a California Penal Code 1203.4 PC Expungement. For example, you can present evidence that you are on the short-list to get a particular job. Or that you have been going to school and an expungement will help you get a professional license. You can also present evidence that you need an expungement to get a job so you can support your family. Also, judges like to see that you are contributing to your community through service or mentorship.
You are not eligible for a California Penal Code 1203.4 PC Expungement if any of the following conditions apply:
- You are currently charged with a criminal offense.
- You are currently on probation due to a criminal conviction.
- You are currently undergoing a sentence due to a criminal conviction.
Additionally, you cannot get a California Penal Code 1203.4 PC Expungement for the following convictions:
- PC 286c sodomy with a minor
- PC 288 lascivious acts with a minor
- PC 288a(c) oral copulation with a minor
- PC 261.5d statutory rape
Why should you get a California Penal Code 1203.4 PC Expungement?
A California Penal Code 1203.4 PC Expungement releases a person from most consequences and debilities that may result from the conviction.
The most important consequence of a California Penal Code 1203.4 PC Expungement is that you do not have to divulge the conviction to a prospective employer. Currently, California law prevents an employer from requesting information about a candidate's criminal record in the early stages of the application process. An employer must wait to request such information until there has been a provisional employment offer. However, if you obtain a California Penal Code 1203.4 PC Expungement for a conviction, then you are not required by law to divulge the conviction even once there has been a provisional employment offer.
Through the expungement process, you can also apply for a “felony reduction.” If the conviction you wish to get expunged was for a “wobbler” crime, you can ask the court to reduce the felony into a misdemeanor. A “wobbler” is a crime where the prosecutor had the discretion to charge you with either a felony or misdemeanor. The prosecutor makes this decision based on the serious of your individual offense and your criminal history.
California Penal Code 1203.42 PC Expungement and Proposition 47 Realignment
If you were given state prison as part of the sentence to a conviction, it is possible you might still be eligible for an expungement under California Penal Code 1203.42 PC. You are eligible under California Penal Code 1203.42 PC if you would have received a jail sentence (as opposed to prison sentence) if the crime you were convicted for had been done after 2011, when Proposition 47 passed. Keep in mind that an expungement under California Penal Code 1203.42 PC is not guaranteed because the judge has the discretion to grant it. The judge will make that decision based on whether or not they think granting the expungement would serve the interests of justice.
To be eligible under California Penal Code 1203.42 PC, the conviction, in which you seek to get expunged, must be for a crime that is:
- Currently punished with a county jail sentence (as opposed to prison), AND
- A minimum of two years has gone by from the time you completed your sentence for that crime, AND
- You do not meet any of the following criteria:
- You are currently under supervised release under that conviction
- You are currently in the middle of serving a sentence for any crime
- You are currently on probation for any crime
- You are currently not facing formal charges for any crime.
Once the court has properly received your application for California Penal Code 1203.42 PC and has decided to grant you relief, the court will do so by either allowing you to withdraw your previous plea (either of “guilty” or “no contest”) and then enter a plea of not guilty; Or if you were previously convicted even after making a plea of “not guilty”, the court will set aside your past “guilty” verdict. Regardless of how the court goes about it, the accusations against you will be set aside and you will be released from all of the negative consequences resulting from the conviction that you would have been released from if it were a California Penal Code 1203.4 PC Expungement.
Advantages of a California Penal Code 1203.4 PC Expungement
Some of the benefits of a California Penal Code 1203.4 PC Expungement:
- An employer is legally not allowed to use an expunged conviction as a basis for denying you employment. This is especially important given the growth of modern technology. In the past, police agencies were the only organization able to conduct background checks on criminal records. But the internet and data storage organizations have made it easier for employers to look up the background of a potential employee. Hence, if you expunge a conviction, an employer cannot legally take it account when deciding whether to hire you.
- Some barriers are removed to obtain a professional state license (such as for nurses, doctors, etc.)
- If you are a witness in court, the expunged conviction cannot be used to attack your credibility. Note, this may not apply if you are the defendant in the case.
- In certain instances, expunging a conviction can lessen the chances of a negative immigration consequence, such as deportation.
Limitations of a California Penal Code 1203.4 PC Expungement
Although there are many advantages to a California Penal Code 1203.4 PC Expungement, there are some things it cannot do. For example, a California Penal Code 1203.4 PC Expungement will not affect a suspended or revoked license. Since California passed laws affecting a felon’s ability to own a firearm, a California Penal Code 1203.4 PC Expungement will not return your ability to own a firearm. Additionally, expunging a conviction will not affect any requirements you might have under California’s sex offender registry laws. Moreover, an expunged conviction may still be utilized to increase a sentence, similar to the way most past convictions are used, if you are convicted of a crime in the future. This is especially true with DUI convictions that you may have previously gotten expunged. Also, if a conviction resulted in a strike, expunging the conviction will not remove the strike.
If you seek to avoid the consequences above, you may need to also obtain relief beyond a California Penal Code 1203.4 PC Expungement. You may want to see a California Certificate of Rehabilitation or a California’s Governor Pardon. These two forms of remedies carry additional relief.
Furthermore, it is important to know that criminal records are public. Hence, the public may still be able to access your criminal records even if you obtain a California Penal Code 1203.4 Expungement. To seal and destroy your arrest records, you should consider a Petition to Seal Arrest Records or relief under the C.A.R.E Act.
Timeline for Applying for a California Penal Code 1203.4 PC Expungement
You are allowed to apply for a California Penal Code 1203.4 PC Expungement when you completed probation for the conviction you seek to expunge or if you applied and were granted early termination of probation. Keep in mind however, that relief under California Penal code 1203.42 PC can only be sought at a minimum of 2 years after the end of the sentence for the conviction you seek to expunge.
You may also apply for both early termination of probation and a California Expungement at the same time. In the criminal defense business, this is referred to as packaging the applications. In fact, our attorneys commonly include all of the following motions into a package asking the court, in one hearing, to request the court to grant early termination of probation (which the court has the discretion to do so if you are complying with the conditions of probation), bring down a felony charge into a misdemeanor if the conviction was for an offense that was “wobbler”, and expunge a conviction.
After your California Penal Code 1203.4 Expungement petition is filed, the court will set a hearing to review the application generally within a few months. The amount of time it takes depends on the county in which the expungement is filed. It is not required that you attend the hearing. Most judges allow for a petitioner’s lawyer to appear on behalf of the petitioner.
Aside from attorney’s fees, there are filing fees that must be paid directly to the court in the county in which the expungement was filed. The fees also vary depending on the county. San Diego County maintains a $60 fee for misdemeanors and $120 fee for felonies. San Bernardino County charges a $270 petition fee. Los Angeles County doesn’t have an outright fee, but may charge up to $120 when the court finds on the motion. Almost all of the counties in California offer financial assistance for those who can show it would be burdensome to pay the petition fee.
If the court grants the petition, we will provide you with a document (order) signed by the judge, which will be your proof that the conviction was expunged.
What should I do if I wish to apply for a California Penal Code 1203.4 Expungement?
Feel free to call one of our experienced attorneys. Our attorneys will happily talk to you about your specific situation and help you proceed with the expungement process.
For a free consultation, please call 424-333-0943.