EXPUNGEMENTS 

Clear Your Record 

          
HOW DO I CLEAR MY CRIMINAL RECORD?
 
Having a criminal record can be a severe burden on your life.  Both misdemeanors and felonies can appear on your criminal history… for life.  That means employers, landlords, and others can access past convictions and guilty pleas.  Additionally, you may have to disclose convictions and guilty pleas when applying to school and elsewhere.  However, our judicial system has established a means to give you a second chance.  It recognizes that situations change and people rehabilitate.  This process is called “expungement”.    
 
WHAT IS AN EXPUNGEMENT?
 
“Expungement” is the legal term for clearing your criminal record,  essentially, a chance to start anew.  In short, the process 1) Reopens your criminal case. 2) Withdraws your previous plea or guilty verdict.  3) Dismisses the charges “in the interest of justice”.  4) Re-closes the case.  Basically, you are no longer a "convicted person."  The following penal code sections are commonly associated with expungements:
     PC § 1203.4 (when probation is part of sentence)
     PC § 1203.4a (when probation was not assigned)
     PC § 1203.41 (used when you have a felony – but never went to state prison.  (*County Jail is NOT State Prison.
     PC § 17 (Used to reduce a Wobbler Felony to a Wobbler Misdemeanor. This penal code can only be used if the crime is a “wobbler” ie. can be charged as either a felony or misdemeanor). 
 
WHAT ARE THE BENEFITS OF AN EXPUNGEMENT?

Often employers, landlords, and other applications ask you if you have ever been convicted of a crime.  If you say “no” and your crime has not yet been expunged, this false answer may amount to perjury, fraud, and other serious criminal offenses.  However, if you get your crime expunged, you may legally answer “no” to these types of questions when applying to a PRIVATE employer.  Notice the ALL CAPS for the word private? That is because certain applications (including government employment) requires that you disclose the conviction and expungement.
It may be advised, in the interest or transparency, that you inform interested persons that you had an expunged conviction dismissed in the interest of justice. 
 
 
WILL THE CONVICTION REMAIN ON MY CRIMINAL HISTORY IF IT IS EXPUNGED?
 
This is a common question.  Unfortunately, an expungement does not completely erase the conviction or guilty plea.  Criminal history databases including FBI/ DOJ/ California/ Bureau of Prisons (just to name a few) can access your criminal history.  However, your expunged conviction or guilty plea may still appear – it will show the charge was dismissed.  Commonly, the legalese used is “dismissed in the interest of justice”.
 
CAN A FELONY BE EXPUNGED?
 
Generally, yes.  However, of course, there is a caveat.  A judge will likely be more careful when granting felony expungements. Primarily, because the crime is more serious.  One strategy I commonly apply to my expungement practice is the PC17 petition.  If the felony is a wobbler and can be reduced to a misdemeanor – I argue for a PC17 reduction of the felony to a misdemeanor before arguing for an expungement.  This is a strategic decision, because a judge may be more likely to dismiss a misdemeanor than a felony. 
 
 
AM I FREE OF ALL RESTRICTIONS NOW THAT MY RECORD IS EXPUNGED?

The short answer is no.  The government can use a previous guilty plea/conviction against you in many circumstances.  For example, expunged crimes may be used against you for: purposes of citizenship and immigration, harsher penalties for subsequent DUIs, used as “prior enhancements” for subsequent crimes, DMV to revoke or suspend a driver’s license, holding public office, applications for government issues licenses, applications to possess firearms, etc. 
 

CAN AN EMPLOYER ASK ABOUT A CONVICTION IF IT HAS BEEN EXPUNGED?
 
Good news! Generally not. Under Labor Code § 432.7 employers cannot inquire into (aka ask about) arrests that did not end in conviction or convictions that have been dismissed.  That’s right, the private employer cannot inquire into your expunged conviction.  If the conviction comes to their attention, they are prohibited in considering that factor in hiring, firing, and promotions. 
 
DO I QUALIFY FOR AN EXPUNGEMENT?

This is where the law gets a bit more complicated.  Specific crimes may not legally be expunged.  It is highly recommended you read the statues listed above, thoroughly or consult an experienced expungement attorney to assist you. 
 
AM I DISQUALIFIED FROM AN EXPUNGEMENT IF I DID STATE PRISON TIME?  
 
If you served state prison time (not county jail time) the process is slightly different.  Generally, you must file a “Certificate of Rehabilitation” instead of the 1203.4 Petition described above. 
 
CAN I GET AN EXPUNGEMENT IF I AM STILL ON PROBATION?

One of the bright line rules of clearing your record, is that you must have successfully completed all terms of probation.  Why? This shows the judge you have been rehabilitation.  In other words, it shows you have made it through a period of time after the guilty plea or conviction with no additional problems.  What are your terms of probation? This can include a jail sentence, ankle monitor, work project, AA meetings, drug tests, counseling, court fees, fines, restitution. 
 
Still on probation? All hope of expungement is not lost.  You may petition the court to terminate your probation early, thereby qualifying you to expunge your crime.  This, of course, is more difficult to obtain than a simple expungement – and generally requires knowledge, skill, and experience with such petitions.  While you may be able to successfully petition the court on your own, an expungement attorney will be able to articulate and advocate in a manner giving you a greater chance for a successful expungement.
 
DO I NEED AN ATTORNEY FOR AN EXPUNGEMENT?

In my law practice, I have seen people represent themselves on expungements both successfully and unsuccessfully.  However, expungement law is complicated.  If you read the 1203.4 “expungement” statute, you will get an idea why many folks choose to hire an attorney. The court fees alone, for the expungement motion may cost you anywhere from $60 to $150. If unsuccessful with the motion, there is generally a waiting period before you can reapply and the odds of the judge granting subsequent motions may be diminished. If you hire an experienced attorney, the attorney will draft a petition for dismissal, order for dismissal, andattached declaration. Also, the attorney will gather proof of completion of probation including receipts for all fines and restitution.  Next the attorney will serve he papers to all necessary parties and orally argue on your behalf to a judge in a court hearing if required.
 

 
                                             1203.4 Expungement Statute 

1203.4.  
(a) (1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
(2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(3) Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.
(4) This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.
(b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.
(c) (1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.
(2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant.
(d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.
(e) (1) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.
(2) It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.
(f) If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.
(g) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.

Source of Statute: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1203.4.&lawCode=PEN