California Penal Code 1203.4 allows the expungement of criminal records within the state. Generally, this Penal Code gives you the right to withdraw your no contest or guilty plea and re-enter a not guilty plea. Such a move doesn’t guarantee that your felony case will be expunged but makes it possible to have your charges dismissed. If a judge reviews your case and grants expungement, you will be released from incarceration and your record wiped clean. Bear in mind that a criminal record can have a devastating impact on all areas of your life and even cripple your chances of enjoying meaningful employment.
Unfortunately, not everyone qualified for an expungement (case dismissal. This blog will help you understand this legal process, who is eligible for it, its benefits, and its limitations. You will also learn how to handle the expungement process if you are a suitable candidate.
Can Felony Cases Be Expunged In California? Expungement Defined
Through California Penal Code 1203.4, defendants convicted of felonies or misdemeanors can withdraw their initial plea and have their cases dismissed. If you qualify for expungement and it is granted, it will remove both the felony charges and conviction from your criminal record. Hence, your record will be clean of the case, ensuring that it cannot affect your employment chances or even lock you out of living within specific neighborhoods.
That said, it will be as if you were never implicated in a felony. You are no longer required to admit you have a criminal history when filing employment or rental property applications. Moreover, the state will be obligated to renew your professional license, increasing your chances of enjoying a more fulfilling life. Upon the expungement of your felony record, it will be illegal for any employer to discriminate against you based on your criminal history.
One of the main perks of having your felony expunged is that it will be easier for you to secure employment within the private sector and even certain government positions. This move may also help you dodge deportation or other related consequences of facing felony charges for immigrants.
Felony Expungement Limitations
It remains imperative to understand that the expungement of a felony has certain limitations. While it may hide your record from potential employers and landlords, it may still be accessible to specific persons. This means that you may not qualify for employment positions within the federal government or the criminal justice department.
Generally, the expunged record will simply be erased from public view. Unfortunately, you may still not have your firearm rights reinstated as described under California’s Penal Code 29800(felon with a firearm law). Additionally, if a conviction affects your driving privileges or your right to hold a position in a public office, having your felony record expunged may not restore these privileges.
Moreover, you still have to register as a sex offender in California, even with a sex crime felony expungement. It is also imperative to note that the expunged record may still be used against you to enhance your sentencing in the future if you face criminal charges classified under California’s Three Strikes Law.
Seeking the expungement of your felony criminal record is a smart move. Even though California Penal Code 1203.4 has some significant limitations, they may be resolved through other legal means. For instance, you can reclaim some of your rights by seeking a Governor’s pardon or certificate of rehabilitation. Furthermore, there is still hope even if a judge denies the expungement application. In this case, you can always seek to have your felony conviction reduced to a misdemeanor.
Who Qualifies For Felony Expungement In California?
As aforementioned, not everyone qualifies for expungement. While this is a legal process available for persons convicted of misdemeanors or felonies in California, you must meet a specified criterion. That criterion is as follows:
- The defendant must have been convicted of a misdemeanor or a felony in California.
- You must not be facing any current criminal charges
- A defendant must have completed sentencing for a criminal charge and satisfied all its requirements
- You must have completed your probation or had your probation terminated
- You must not have served your sentence in a state prison in California
- The defendant must have been charged and sentenced in a state court
- You must have cleared all pending fines as ordered by the court
- You have been served your time for at least one year and have not received probation
If you don’t meet the above eligibility criteria, the court may still expunge your criminal record at its discretion. In this case, you must satisfy the following:
- Even though you did not fulfill all your probation requirements, you must have settled all fines and restitution and must not be facing current charges or serving time for a different offense
- You were sentenced to county jail, you did your time, and at least two years have elapsed since you were freed
- Your conviction may stem from an injury or trauma you suffered while serving as a member of the American military
Typically, the felony cases eligible for expungement are those that can be reduced to a misdemeanor. This means that you only qualify for the process if you were charged for a wobbler offense.
In California, a defendant doesn’t qualify for criminal record expungement if:
- Their conviction happened in federal court.
- Sentencing involved incarceration in a state prison
- A defendant is still serving probation and cannot have the probation terminated before completion
- An accused is facing current charges, is serving a sentence, or is on probation for a different offense
- A defendant was convicted for a sex crime that involved a minor
It is also imperative to note that your eligibility may be affected by specific Penal Codes depending on the felony you were convicted of committing. If you are unsure whether you qualify for expungement, it is crucial to discuss your case with a skilled criminal defense attorney.
Steps for Filing for a Felony Expungement
At this point, you understand the eligibility criteria of the expungement process. You are also well acquainted with the benefits and limitations of having your criminal record expunged. If you are still interested in the process, here are the steps you should take when filing:
Consult a Criminal Defense Attorney
The expungement process, just like most legal processes, is complex and packed with strict regulations and requirements. While it is possible to file without seeking any legal assistance, you may have better chances of enjoying the best outcome if you enlist a skilled lawyer. Such an expert will have an in-depth understanding of California laws, specifically the statutes and requirements allied with the expungement application process.
Obtain the Relevant Forms and Complete Them
There are particular forms you must obtain depending on the crime you were convicted of committing. For instance, if you seek expungement for a misdemeanor and have completed probation, the correct form to use when filing your petition is PC 1203.4.
When seeking a felony expungement, you must first file to have it reduced to a misdemeanor charge. Again, you can only have a felony case dismissed if it was a wobbler offense. In this case, you should file your petition using form PC § 17(b)(3), which is available at your local courthouse. Your attorney can help you draft your own petition to have the felony reduced in case form PC § 17(b)(3) is unavailable.
If the courts grant your petition and your felony charge is reduced to a misdemeanor, the next step is to file a new petition to dismiss the misdemeanor charge. In this case, the correct form to use is PC 1203.4. You can obtain it from your local courthouse or download it from their website.
When filing, you require one copy of the form you file for each conviction. Your attorney will provide appropriate guidance if you need to submit more photocopies of the completed paperwork. Note that the courts may also require you to attach additional documents to your forms to strengthen your petition. These forms may include character references and proof of successful completion of probation or community service.
Petition for Expungement
After obtaining and completing the proper forms, it’s now time to file your expungement petition. In California, defendants charged with felonies can have their records expunged in 4-5 months. The court will schedule a date to hear your case depending on when your petition is filed. Note that you should file your forms with a court within the county you were convicted.
Moreover, make sure you mail or hand-deliver your petition to have a felony reduced to a misdemeanor. Usually, this petition should be handed over to the court clerk, although you may be required to serve it to the probation department or the DA (District Attorney), depending on your county.
There is a small fee charged for petitioning for the expungement of a felony or a misdemeanor. For felonies, the fee is set at about $915. This includes the cost of having your charges reduced to a misdemeanor. In case this fee is beyond your financial means, you can seek financial assistance through the county.
Prepare For Your Hearing
As aforementioned, you cannot afford to underestimate the importance of working with a skilled attorney. One of the core duties of the expert is to help you prepare for the expungement hearing. The chances are that you will be required to attending the hearing. However, this will all depend on the court where your case is heard.
At the hearing, you can expect the prosecution to raise reasons to deny your petition for expungement. This makes it imperative to effectively prepare yourself to respond appropriately to each reason the prosecutor presents. Your lawyer can provide invaluable assistance by helping you to prepare evidence relevant to your case. The expert will also help you design a statement that you will deliver to court and provide you with all the necessary documents and their copies.
Attend the Expungement Hearing
Unlike regular hearings for criminal cases, an expungement hearing is held before a judge. The defendant doesn’t have the option of choosing a hearing by jury. Usually, the proceedings don’t take more than 10 minutes.
It is in your best interests to appear for your hearing on time. Moreover, be on your best behavior irrespective of the reasons the prosecution may raise to deny your petition. The court will consider whether you qualify for an expungement of your record, based on aspects that may include:
- The charges
- Your parole status
- The presence or absence of other convictions
- Your current chances of securing employment and holding a job
- Your involvement in community service and development
The court has the discretion of accepting or denying your petition. If the felony record dismissal is granted, the California Superior Court Judge will send you a signed order documenting the expungement of your felony and conviction. Remember that the public may still be able to view your expunged case and conviction unless to seek record sealing.
Upon the expungement of your record, you no longer have to reveal that you have a felony conviction in your history. However, you may still be obligated to disclose as much when running for public office, applying for a state license, or seeking employment with the CLC (California Lottery Commission).
There is also the possibility of a judge denying your petition. In this case, you have a right to seek closure on why it was denied and what you should do to have it accepted. You have to wait for at least six months to re-file your expungement petition. Ideally, you must make any necessary changes before them.
A judge may deny your expungement petition because you don’t qualify for the process. In this case, you may consider other legal alternatives that are just as good as the expungement of your felony record. Some of the best options you have are as follows:
Record sealing is a legal process that can hide and destroy your police reports and arrest records, among other documents allied with your case. This process is one of the ideal options for persons wrongfully arrested for a crime but were not convicted. You may also opt for record sealing if you were arrested for a criminal offense, but the courts dismissed the case, or you were deemed not guilty by a jury.
Record sealing is also commonly sought after by people who have gone through the juvenile court system. In this case, you must wait for at least 5 years after hitting the legal age of 18. You are eligible for sealing juvenile court records if you have not been convicted of any crime as an adult and don’t have any pending civil cases.
The process of sealing a criminal record is complicated. First, you will need to obtain a Certificate of Factual Innocence before filing your petition. Moreover, the prosecution is likely to contest the sealing of your records, making it imperative to seek guidance from a skilled attorney.
Certificate of Rehabilitation (COR)
Another way to have your criminal record destroyed is by seeking a Governor’s pardon. The only way to receive the pardon is by first obtaining a certificate of rehabilitation. Once the pardon is granted, you will be relieved of all penalties allied with your conviction. This may include having some of your rights restored, such as the right to own a firearm.
You must wait for 7 years to elapse following your release from parole or probation before you can apply for a certificate of rehabilitation. On the other hand, you must wait for 10 years following release from parole or probation to apply for a direct pardon.
Note that the certificate of rehabilitation will neither seal nor erase your conviction from your criminal record. You will still have to reveal that you have a felony on your record when approaching potential employers. However, you will have the following rights reinstated upon obtaining the COR:
- Voting rights
- Firearm possession rights
- The right to serve as a jury member
- The right not to register as a sex offender if you were convicted of a sex crime
A Governor’s pardon is by far the best alternative to seeking the expungement of your criminal record. As aforementioned, you qualify to petition for this pardon after obtaining your certificate of rehabilitation. It remains imperative to understand that you may still be eligible for a pardon even without a COR.
If you obtain your COR then petition for a pardon, you will enjoy all the certificate’s benefits and enjoy relief from all penalties allied with your conviction.
Find a San Jose Criminal Attorney Law Firm Near Me
To sum it up, felony convictions can be expunged in San Jose, CA. There are also other viable legal alternatives you may consider if you don’t qualify for this process. At San Jose Criminal Attorney Law Firm, we can help you withdraw your plea to have your felony dismissed. We can also help you pursue other alternatives to reduce the baggage of having a felony conviction on your record. Call us today at 408-622-0204 and let us discuss your case in more detail.