Expungement is a legal means designed to get rid of all or part of the records of a case. The procedure is also done to remove guilt or unfavorable finding by annulling, withdrawing, vacating, or setting aside the finding of guilt without necessarily affecting access to the case history. If you have a conviction on your criminal record, you are likely to face substantial barriers while searching for a job, affordable housing, or applying for a loan. Get in touch with us at the California Criminal Lawyer Group so that we can help you get an expungement of your criminal record.
California’s Law on Expungement
California Penal Code 1203.4 states that an expungement, sometimes referred to as a dismissal releases a person from the adverse consequences of a conviction. You will be released from disabilities and penalties resulting from the sentence once you get an expungement. According to California’s ban the box law in AB 1008, employers are barred from asking job applicants to disclose information on their criminal record unless they offer of conditional employment. The employer is required to create an individualized assessment before denying the applicant because of a conviction.
Once your criminal record has been expunged, your employer may still have access to your case history but can not use it to deny you employment even after making a restricted offer for the job. You will also be allowed by the law to deny having a criminal history when asked by either potential employers, licensing agencies, and landlords.
When recreational use of marijuana became legal in, a bill was passed that required the California Department of Justice to review and seal all past marijuana convictions that are no longer considered crimes. The record seal means that you will not have marijuana convictions on your case history. Hence, no need to apply for an expungement for the sentences made legal.
Eligibility for Expungement in California
California Penal Code 1203.4 requires the authorization of expungement for a misdemeanor or felony offense as long as you satisfy the following conditions:
- You must have successfully concluded or obtained an early termination of your probation. The probation can be either formal or informal
- You should not be presently charged with an offense, on probation, or carrying out a sentence for the violation
- You should be eligible if you did not serve time in state prison for the offense.
- If you would have served time in a county jail for the crime if it had been committed after 2011’s Proposition 47, Realignment legislation, your conviction can be expunged. If you were convicted under Proposition 47, Realignment legislation exception, you will have to file a petition as the court does not automatically grant you relief. The judge may then approve the relief if it would be in the interest of justice. For your crime to qualify under Penal Code42, it must fall under the exception, you should not be serving a sentence, on probation, or charged with the commission of any crime.
The probation can only be considered successful if you complete all the conditions of your probation by paying restitution and fines, undertaking community services, and completing counseling programs. If you committed any new crimes or you or your lawyer did not the necessary attend court appearances while you are on probation, it is not considered successful.
Although you are required to complete probation to get an expungement, you may get a special hearing in court if you violated the probation. The hearing will be done to determine whether you are the right candidate for expungement.
While you are considered a competent candidate in obtaining expungement after serving your sentence, your records will not be expunged if you were convicted of sex offenses carried out against children. The serious sex crimes in California include:
- California's law prohibiting sodomy with a child under Penal Code 286(c)
- California's law banning oral copulation with a child under Penal Code 288a (c)
- California's lewd or lascivious acts with a child law under Penal Code 288 PC, and
- California's statutory rape law under Penal Code 261.5(d)
The laws on statutory rape and oral copulation with a child requires that the sexual act is between adults who are above 21 years and children younger than 16 to not qualify for expungement.
Early Termination of Probation to be Eligible for Expungement
California penal code 1203.3 gives a judge the authority to grant your request to secure early termination of your probation. For you to obtain this type of relief, your criminal defense attorney must file a motion with the prosecuting agency and the court at least two days before the date of the requested hearing. Your probation can only be terminated if you have completed a minimum of a one-year misdemeanor probation sentence or at least 18 months of a felony probation sentence.
The court will consider the termination if you have completed community services or counseling paid restitution and finished your court-ordered classes. Factors such as your criminal history, the severity of your case, the prosecutor's opinion, and the hardships caused by the probation will influence the court's decision. Once the court terminates your probation, you can immediately apply for a California Penal Code 1203.4 expungement.
Reducing Felony Convictions to Misdemeanor to be Eligible For Expungement
Although you can obtain expungement for a felony conviction without initially reducing it to a misdemeanor, it is vital to undertake this procedure as it preserves specific rights and benefits. For instance, you will have the right to own firearms if your felony conviction is first reduced to a misdemeanor.
If you were convicted of California felonies, you might have those convictions reduced to misdemeanors, which eliminates the burden of being a convicted felon. California Penal Code 17(b), grants the judge authority to reduce your felony conviction to a misdemeanor as long as you were convicted of a wobbler crime and completed probation. A wobbler is an offense that can be charged and punished both as a misdemeanor or a felony.
The judge may reduce a felony to a misdemeanor after you have been sentenced and completed your conviction by considering the nature and facts of your case, your compliance with probation terms, and your criminal history.
However, some penalties do carry over even after you reduce your felony conviction to a misdemeanor. They include:
- The conviction would remain a strike for the aim of California's Three Strikes Law if the offense were a violent felony
- You will still be required to register as a sex offender under Penal Code 290 if the offense had such conditions
- Your reduced conviction will still be considered a felony under the federal authority
- The California State Bar and other licensing departments may still consider your conviction a felony
Benefits of Obtaining a California Expungement
Expungement achieves public policy goals by providing motivation for rehabilitation, increasing the probability for acceptance of plea bargains, and allowing the rehabilitated offenders to integrate back to society. There are several advantages to procuring a California expungement. The most notable ones include:
- No Employer Bias
Employers may not be biased against you based on expunged convictions. Both felonies or misdemeanors can make it exceedingly challenging to get employment. Felony convictions, especially for sexual, drug-related, violent, offenses can force employers to be uninterested in hiring you. They might not have confidence in your ability to retain a safe and healthy work environment, even if your conviction was far in the past. Having your record expunged will prevent hardships in finding a job or having to settle for a position below your education and previous pay levels.
- Access to State Licenses and Professional Entities
Obtaining an expungement will make it easier to get state licenses and joining professional organizations. There may still be obstructions when it comes to securing a professional permit to operate as a doctor, nurse, lawyer, and other professions if you have criminal records. It can also be challenging to get state licenses such as real estate license, contractors license, and application for public office. Many of the processes for procuring these licenses require the revelation of previous convictions. The governing bodies of these agencies may question your ethics or capacity to uphold the principle of that job. Having your records expunged gives you the right to deny ever having prior convictions when applying for a professional license.
- You can be a Credible Witness
When your criminal records are expunged, you can still be used as a credible witness to testify in a court of law unless you are also a defendant in the following case. The opposing side in a court proceeding can not question your credibility by bringing up your past felony convictions. This expungement can be enormously helpful if you sue someone else or are sued for damages in a civil suit, and your testimony is key to the outcome.
What Not to Expect from an Expungement
There following are restrictions on what an expungement can do under California Penal Code 1203.4:
Immigration Consequences Remain in Effect
An expungement can not prevent the immigration consequences of a conviction. The consequences might include denial of admission, deportation, and denial of naturalization.
Expungement does not Affect a Driver’s License Revocation or Suspension
The expungement can not be used to reverse a driver's license revocation or suspension. If the DMV suspends your license, you will have to follow the usual procedure for setting aside or revoking a license suspension.
Loss of Gun Rights with a Conviction
An expungement can not restore your gun state rights under California Penal Code 29800 penalties for owning, possessing, purchasing, or receiving a gun.
Your Registration as a Sex Offender will not be Withdrawn after Expungement
You will still be registered as a California sex offender under penal code 290, regardless of obtaining an expungement.
A Second Conviction Reopens your Criminal History
When charged with another crime, expunged convictions can also be utilized as previous offenses when the court decides on the penalties applicable to your case. Further, if your conviction was considered a strike for the intentions of California's three-strike, it will remain a strike after expungement.
Why You Need to Hire a California Expungement Attorney
Although the assistance of an experienced attorney is not a requirement, it is recommended to have a lawyer as you are likely to have a higher success throughout the expungement process. An attorney can be of assistance in:
An attorney can analyze your case and determine if you are eligible for expungement. Your attorney will help you obtain all the necessary documents and requirements needed before applying for this type of relief. If you do not qualify for expungement, your lawyer will take you through other available options and how you can apply for those types of aid packages.
A lawyer has enough information on the changes of the law, which can assist in filing for an expungement. For instance, the switch on marijuana for recreational purposes from unlawful to legal, meaning you do not have to apply for an expungement for that conviction.
It is crucial to be prepared before filing any paperwork. An attorney can help file the appropriate paperwork before the hearing. Filing the paperwork in the proper time frame is vital as it allows the prosecutor to review your case.
An attorney can attend the expungement hearing on your behalf. If your presence is needed during the hearing proceedings, your attorney can help you prepare as you will be required to give reasons why your expungement should not be denied. Your attorney can also gather evidence relevant to your case and develop a statement for you to deliver in court.
California Process of Filing For Expungement
You will need to petition the court for you to be considered for expungement under Penal Code 1203.42. You can make an application in person, or an attorney can do it on your behalf, or by writing from a probation officer that can be validated.
Once you have filed your petition, a hearing will be scheduled, which will be held before a judge. The court will then consider your eligibility for your expungement based on the status of your probation, your charges, additional convictions, and community involvement. You may also be required to defend your petition by giving reasons as to why your expungement should not be denied.
The court may then permit you to withdraw your plea of guilty or no contest and enter a plea of not guilty. If you were convicted after a plea of not guilty, your verdict of guilty will be set aside.
After the court dismisses the accusations against you, you will be released from all punishment resulting from the offense. You will then receive a signed order from a California Superior Court judge documenting the dismissal of your conviction. Although the public may still access the record after the expungement, you are legally allowed to answer NO when asked if you have a criminal history.
If your petition is denied, you may request information on why it was rejected and what is needed for your request to be accepted. You can then reapply after six months with all the changes and documents requested. If you are entirely not eligible for expungement, you can apply for another type of relief.
Alternatives to Having Your Conviction Expunged
If your case is not eligible for expungement or you want additional rights to be restored that an expungement can not grant, you can apply for the following:
California Certificate of Rehabilitation
A California Certificate of Rehabilitation is a court order declaring that you were previously sentenced for a crime, and you are now rehabilitated. The certificate restores your political and civil rights of citizenship if you prove to have been rehabilitated. The relief is available to those convicted of a felony or a misdemeanor sex offense listed in Penal Code 290, which required sex offender registration. Obtaining a California Certificate of Rehabilitation means you automatically become a candidate for California's governor pardon.
The certificate will offer better employment prospects, increase the probability of obtaining a professional license, and in some cases, you may not be required to register as a sex offender. You are qualified for a California Certificate of Rehabilitation if:
- You have not been imprisoned after the dismissal or completion of your offense.
- You were a resident of California for a minimum of 5 years before petitioning for a Certificate of Rehabilitation
- You have been rehabilitated by either probation, California parole, or custody
- If you were sentenced to probation from a felony conviction and the conviction was expunged
You do not qualify for a California Certificate of Rehabilitation if:
- You were sentenced for a misdemeanor offense
- You are serving compulsory life parole
- You were sentenced to death
- You are in the military
- You perpetrated a federal violation or a crime in another jurisdiction exclusive of California
- You were convicted of a sex crime involving a minor or an eligible sex offense, but the court still determines you are a threat to children
Unlike petitioning for an expungement, if you can not afford an attorney, you will get a public counsel or an adult probation officer to represent you at the hearing. At the hearing, your lawyer will present evidence in favor of a Certificate of Rehabilitation. The judge will consider various factors your employment, volunteer work, recommendations, proof of residence, and other factors that may establish your character.
After the court grants you a Certificate of Rehabilitation, copies will be forwarded to the California Department of Justice, Board of Parole Hearings, and California governor's office. If the court denies your petition, you can appeal an order but at a fee.
California Governor’s Pardon
A California governor’s pardon is granted to those who have been rehabilitated of a crime. The pardon relieves many of the penalties as a result of a criminal conviction.
Although the pardon can not remove your conviction from the public record, it restores your California firearms rights, right to serve a jury, and the right to be employed as a probation officer. You will also have the right to be a credible witness and apply for professional and state licensing.
Although expungement is more potent than a pardon, it is not capable of relieving you from the duty of registering as a sex offender or prevent you from being deported.
You will be informed if your application for the California governor's pardon is denied, but you are not entitled to be given the reasons. You can apply through the traditional pardon procedure if you are not eligible for a Certificate of Rehabilitation. You can be pardoned even if you do not satisfy the residency requirement for a COR.
How is Record Sealing and Destroying Different from Expungement
Record sealing and destroying under PC 851.8, can only be done if the judge declares you to be factually innocent, meaning you were arrested but never convicted of the crime. When your record is sealed, it will appear on criminal background checks other than to law enforcement.
You are eligible to have your record sealed if no criminal charges were filed, the jury acquitted you, your conviction was overturned on appeal, or your charges were dismissed. If you have a history of arrests on child abuse, domestic violence, or elder abuse, your record can not be sealed. You must present a separate petition for each arrest on your record that did not end in a conviction.
The judge may consider evidence concerning your good character, testimony regarding the arrest, your record of convictions, and the hardship your arrest caused you while deciding on sealing your arrest.
Your fingerprints, photos, police records, court records, and police investigative reports will be unavailable except for restricted applications by the criminal justice bodies or California state.
Find a California Criminal Lawyer Near Me
A dismissal has many benefits and, if you are eligible, may assist you in getting a fresh start. So having any criminal record creates substantial barriers for you to move on with your life. In the legal world, these repercussions are referred to as the collateral consequences of criminal charges. Despite being rehabilitated or serving your sentence and fit to rejoin the society, you will still face many challenges regardless of your best intentions or behaviors. You can contact the California Criminal Lawyer Group by giving us a call today at 408-622-0204 to help you through the California process of expungement.