Expunge Criminal Record Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/expunge-criminal-record/ Christian, Political, ‎‏‏‎Social & Legal Free Speech News | Ⓒ2024 Good News Media LLC | Shepherd for the Herd! God 1st Programming Sun, 31 Dec 2023 01:22:37 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.3 https://goodshepherdmedia.net/wp-content/uploads/2023/08/Good-Shepherd-News-Logo-150x150.png Expunge Criminal Record Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/expunge-criminal-record/ 32 32 Seal & Destroy a Criminal Record https://goodshepherdmedia.net/seal-destroy-a-criminal-record/ Thu, 02 Mar 2023 20:32:27 +0000 https://goodshepherdmedia.net/?p=12277 Seal & Destroy a Criminal Record

Information on sealing and destroying an arrest record can be found at California penal code section 851.87 through 851.92. For purposes of PC 851 motions the defendant is referred to as the Petitioner. A petitioner’s request to seal and destroy an arrest record may be sought in several situations, including after the successful completion of a diversion program or after the defendant was arrested but not convicted of the crime for which he or she was arrested.

​Diversion Related 851 Motion: Diversion is program whereby an accusatory pleading is placed on hold while the defendant completes terms of diversion. Terms of diversion are similar to probation terms and usually include an order to pay fines, stay out of trouble, complete classes, etc. If the terms of diversion are successfully completed the defendant’s criminal case is dismissed (diverted). Thereafter, the defendant may request that the court seal and destroy the defendant’s arrest and diversion sentence (PC 851.87 Abbrev.). More information on diversion programs may be found at Diversion.

​Note: For arrest records that are sealed after the successful completion of diversion the defendant may state that he or she has not been arrested except in certain circumstance, including, but not limited to, a response to a direct question in an application to become a peace officer.

​Employment: The petitioner may not have his or her criminal record that is sealed and destroyed after a diversion program used against him or her to deny employment (PC 851.87).

​No Conviction after Arrest: Per PC 851.91(a) a person who is arrested but not convicted of a crime may petition the court to have his or her arrest related records sealed (PC 851.91 Abbrev.).

​For purposes of PC 851.91 motions, an arrest does not result in a conviction if any of the following is true:

  • The statute of limitations has run on every offense upon which the arrest is based;
  • ​the prosecutor timely filed criminal charges, but the arrest did not lead to a conviction because the criminal charges were dismissed and may not be refiled, or
  • ​because the defendant was acquitted of the criminal charges.

​

Exception: If the defendant intentionally evaded law enforcement efforts to prosecute the arrest then he or she may be denied the sealing and destruction of his or her criminal record. This is true even if the any of the above required condition would otherwise apply to the defendant’s 851 petition.

​PC 851.91 After Appeal: If the defendant was found guilty at a criminal trial but his or her conviction was reversed on appeal and any of the condition above apply then the defendant may petition to have his or her arrest sealed pursuant to PC 851.91.

​Limitations: A petition may have his or her criminal arrest and related records sealed and destroyed as a matter of right if the arrest is not based upon domestic violence with a pattern of domestic violence, child abuse with a pattern of child abuse, or elder abuse with a pattern of elder abuse, unless the court finds that granting the petition serves the best interest of justice.

​Note: A pattern of abuse means “two or more convictions, or five or more arrests, for separate offenses occurring on separate occasions within three years from at least one of the other convictions or arrests.” (PC 851.91)

​In determining whether the granting the 851.91 petition would be in the interest of justice (despite the fact that the defendant has a pattern of abuse prior to the current arrest) the court will consider the following: the hardship to the petitioner, the good conduct of the petitioner, the circumstances of the petitioner’s prior arrests, and more. In other words, if the petitioner is arrested for a crime, and that arrest never leads to a criminal conviction, then the petitioner may have his or her arrest sealed.

In Sum, If the arrest was for a crime that did not involve a pattern of abuse against a child, a person domestically related to the petitioner, or an elder, then the petitioner may have his or her arrest sealed as a matter of right; but, if the arrest did involve a crime for which the petitioner has a pattern of abuse against a child, a domestically related person, or an elder, then the defendant will be required to show that the sealing of his or her arrest record would be in the best interest of justice (PC 851.91).

​Petition Procedure: PC 851 petitions start with the filing of a petition to seal and destroy arrest and related records with the proper court (the court that has jurisdiction over the matter where the arrest occurred). Copies of the petition must be served on the arresting law enforcement agency and on the prosecutor no less than fifteen days before the petition is heard in criminal court. Thereafter, the prosecuting attorney may file a response to the petition. The district attorney’s response may include police reports and other records in his or her efforts to show that the petition should not be granted the requested relief. If the district attorney objects at the initial hearing on the matter, the hearing will be continued at least sixty days so that the prosecuting attorney can prepare a more thorough response.

​Note: In cases where the defendant has a right to the sealing and destruction of arrest and related records as a matter of right the district attorney is less likely to file a response to the petition (PC 851.91).

​If the petition to seal and destroy an arrest and related records is granted, whether the request is made after the successful completion of diversion (PC 851.87) or pursuant to a PC 851.91 motion, the petitioner’s arrest and related records will be sealed and destroyed according to the following: The court will send a report to the Department of Justice, the prosecuting attorney, and the relevant law enforcement agency stating that the relief sought was granted. The report will indicate that the arrest is deemed not to have occurred and the petitioner may answer question relating to the sealed arrest that he or she has not been arrested for the offense; however, as stated, the arrest is not sealed and destroyed for all purposes.

For example, a prosecuting attorney may use an arrest record against the defendant in subsequent prosecution even if that arrest record was sealed and destroyed pursuant to PC 851.87 or 851.91. In addition, a sealed and destroyed arrest record may not be denied in response to any direct question contained in a questionnaire or application for public office, for employment as a peace officer, for licensing by any state or local agency, or for contracting with the CA State Lottery Commission.

​Statistical Info Not Sealed: A sealing and destruction of an arrest record does not destroy the booking information related to that arrest. For example, the petitioner’s fingerprints, photographs, or DNA collected during the booking process remains in the records of the Department of Justice. Also, the destruction of an arrest record does not mean that an agency authorized to search the petitioner’s criminal history will not know the defendant was arrested; rather, the facts and circumstances of the arrest are sealed but petitioner’s criminal record may continue to reflect that an arrest was “sealed.”

​Court Records Sealed:  The records sealed means files, and materials created, compiled, or maintained by or for the court in relation to court proceedings, and includes, but is not limited to, indexes, registers of actions, court minutes, court orders, court filings, court exhibits, court progress and status reports, court history summaries, copies of state summary criminal history information and local summary criminal history information, and any other criminal history information contained in any of those materials (PC 851.92 Abbrev.).

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How to Seal & Destroy Arrest Records in California

If you were arrested for a crime but never convicted, California law allows you to get your arrest records sealed and destroyed as a matter of right. Sealing a record means that it will not show up on most criminal background checks. Records of arrest will be destroyed, including

  • police reports,
  • fingerprints,
  • booking photos, and
  • rap sheet entries.

The process to seal a record involves three key steps:

  1. You must first file a petition in the city or county where the arrest took place.
  2. The petition must be served on the local prosecuting agency and the police agency that made the arrest.
  3. Then a hearing takes place where a judge decides whether to grant or deny the petition.

A criminal defense attorney can handle the entire process for you.

The current law as to sealing originated as California Senate Bill 393, which then-Governor Jerry Brown signed into law on October 11, 2017. Called the Consumer Arrest Record Equity Act (CARE Act), SB 393 is now codified in Penal Code 851.87 PC. This section allows you to have your record of the arrest sealed as a matter of right when:

  • No criminal charges were ever filed,
  • Criminal charges were filed but later dismissed,
  • You were found “not guilty” (acquitted) in a jury trial,
  • Your conviction was vacated or overturned on appeal, or
  • You successfully completed a pretrial diversion or pre-sentencing program, such as Penal Code 1000 deferred entry of judgment. 1

An exception to sealing an arrest record as a matter of right is when you have a history of arrests and/or convictions for:

  • Domestic violence,
  • Child abuse, and/or
  • Elder abuse.

As of July 1, 2023 with the passage of Senate Bill 731 – The Clean Slate Act, most people’s arrest and conviction records will get automatically cleared from their criminal record through a process called “automatic relief“:

  • Misdemeanor arrests should be sealed after 1 year if there are no charges, and felony arrests should be sealed after 3 years if there are no charges.
  • Cases that get dismissed should be cleared immediately.
  • Convictions of cases where you are granted probation should be cleared once the case closes.
  • Otherwise, misdemeanors convictions will be cleared 1 year after the case ends, while felony convictions will be cleared 4 years after the case ends. (This does not apply to serious, violent, or sex offender felonies.)

1. What are the benefits of sealing an arrest record?

Criminal records are public records. This means that anyone can access another person’s criminal history.

Prospective employers, apartment owners, state licensing agencies, insurance companies — even potential dating partners — can run a background check and see someone’s criminal history. Such people may not care whether an arrest was justified or resulted in a conviction.

California’s “ban the box” law (codified in AB 1008) prohibits employers from considering a job applicant’s arrests that did not ultimately lead to a conviction. Again, however, employers may dismiss some job candidates because of their arrest records without ever stating this.

But once an arrest record is sealed under PC 851.87, members of the public will no longer be able to see it. The arrest record, police investigative reports, photos, fingerprints and court records will be inaccessible except for limited use by the state of California or criminal justice agencies. In short, a record seal gives the defendant a fresh start.

2. What is California’s Clean Slate Law / SB-731?

In full effect as of July 1, 2023, California’s Clean Slate Law (SB-731) automatically clears most arrest and conviction records from your criminal history after certain conditions or waiting periods are met.

Your California criminal record When your record is eligible for automatic relief (in most cases)
Misdemeanor arrest with no charges brought 1 year after the arrest
Misdemeanor charge which gets dismissed Immediately after the dismissal
Misdemeanor conviction where you are granted probation Immediately after probation is done
Misdemeanor conviction where you are not granted probation 1 year after case closes
Felony arrest with no charges brought 3 years after the arrest
Felony charge which gets dismissed Immediately after the dismissal
Felony conviction where you are granted probation (not including serious, violent, or sex offender crimes) Immediately after probation is done
Felony conviction where you are not granted probation (not including serious, violent, or sex offender crimes) 4 years after case closes

The Clean Slate Act takes the burden off you to file a motion to seal or expunge your record. Plus for the first time, it allows for automatic relief of felony convictions where you may have been incarcerated – thereby greatly increasing the employment and housing prospects for countless people.2

Note that the automatic record relief process may get delayed if you pick up new criminal cases in the interim. Plus if your criminal record is never eligible for automatic relief, you still may be able to get relief by filing a petition to seal or expunge.

Also note that automatic relief does not restore firearm rights.

3. Who is eligible to seal an arrest?

Penal Code 851.87 gives people the right to have an arrest record sealed as long as their arrest did not result in a conviction. For purposes of PC 851.87, an arrest did not result in a conviction if any of the following apply:

  • No charges were filed and the statute of limitations on each possible felony, misdemeanor, or infraction charge has expired;3
  • Charges were filed but they were later dismissed and cannot be refiled (for example, as the result of a Penal Code 995 motion);4
  • Charges were filed but the defendant was acquitted (found “not guilty”) at trial;
  • The defendant was convicted, but the conviction was vacated or reversed on appeal and the charge(s) may not be refiled; or
  • Charges were dismissed after the defendant successfully completed a pretrial or pre-sentencing program such as drug diversion.5

Note that as of July of 2022, California has been automatically sealing misdemeanor records of people who have stayed out of trouble for one year. Then as of July of 2023, California is automatically sealing most felony records of people who have stayed out of trouble for four years.

However, this automatic record sealing process excludes people convicted of serious or violent felonies. These people would still need to formally petition for a record seal. Plus, sex offenders generally cannot get a record seal.6

how to expunge a conviction under California Penal Code 1203.4 PC. Expunging is a more difficult process since the defendant has pleaded guilty or “no contest” to, or been convicted of, a crime.

man in handcuffs - California has a process for people to seal and destroy their arrest records

The key is that there was no conviction and no exceptions apply.

4. What does it mean to seal an arrest “as a matter of right”?

Under the old law (Penal Code 851.8 PC) the person who was arrested had the burden of proving that he or she was “factually innocent.”

SB 393 / PC 851.87 shifts the burden of proof to the prosecutor to prove that someone is not entitled to seal their record — for instance due to a pattern of domestic violence or because charges can still be filed.

Almost everyone else is entitled to have their arrest records sealed as a matter of right (automatically). The key is that the arrest did not result in a conviction and no exceptions apply.

5. Who is NOT eligible to have an arrest record destroyed in California?

A person is not eligible to have an arrest record sealed if any of the following apply:

  • He or she may still be charged with any of the offenses upon which the arrest was based;7
  • The arrest was for murder or another crime for which there is no statute of limitations (unless the person was acquitted or found factually innocent of the charge);8
  • The person was not charged because he or she intentionally evaded law enforcement efforts to prosecute the arrest, such as by absconding from the jurisdiction;9
  • The person evaded efforts to prosecute the arrest by engaging in identity fraud and was subsequently charged with a crime for that act of identity fraud.10

6. What counts as a “pattern” of domestic violence or abuse?

People are not entitled to seal a California arrest as a matter of right if their criminal record shows a “pattern” of:

  • Domestic violence,
  • Child abuse, or
  • Elder abuse.

Under SB 393 and California Penal Code 851.91 a “pattern” is defined as two or more convictions, or five or more arrests, within a three-year period.11

However, people who fall into this category can still petition to have their records sealed on the grounds that doing so would “serve the interests of justice.”

In determining whether the interests of justice would be served by sealing an arrest, the judge may consider any relevant factors, including (but not limited to):

  • Hardship to the petitioner caused by the arrest that is the subject of the petition;
  • Declarations or evidence regarding the petitioner’s good character;
  • Declarations or evidence regarding the arrest; or
  • The petitioner’s record of convictions.

7. When can a sealed arrest record be legally used in California?

Although sealing a record effectively destroys it for most purposes, it does not entirely cease to exist.

The sealed arrest may be pleaded and proved if the petitioner is subsequently prosecuted for any other offense.12

Additionally, a criminal justice agency may, in the regular course of its duties, access and disclose the arrest to other law enforcement agencies to the same extent as if it had not been sealed.13

Sealing also does not relieve the petitioner from:

  • Any existing duty to register as a sex offender pursuant to California Penal Code 290 PC;
  • Any legal prohibition against holding public office that may result from the arrest;14
  • Any prohibition against owning or possessing a firearm or susceptibility to a conviction for violating California’s “felon with a firearm” law;15 or
  • The obligation to disclose the arrest as otherwise required by law in response to a direct question on an application for:
    • Public office,
    • Employment as a peace officer,
    • Licensing by any state or local agency, or
    • A contract with the California State Lottery Commission.16

Finally, it should be noted that sealing an arrest applies solely to the specific arrest being contested. It does not erase one’s entire criminal record. People must submit a separate petition for each arrest on their record that did not result in a conviction.

8. Is there a deadline for moving to seal my California arrest record?

Under prior California Penal Code 851.8 people had just two years from the later of their arrest or the filing of charges to petition to seal their arrest record. Penal Code 851.87 contains no time limit for petitioning.

However, the new law has not yet been tested in court.

Accordingly, we recommend filing a petition to seal an arrest as soon as it is no longer possible for the prosecutor to file or refile charges.

An experienced California criminal lawyer can help you determine when you have eligibility to file for relief.

9. What is the process?

Note that the record seal process is automatic for most

  • misdemeanors (if you stayed out of trouble for one year) and
  • non-serious and non-violent felonies (if you stayed out of trouble for four years).17

9.1. Filing the petition with the court

A petition to seal an arrest record in California must be filed either:

  • In the superior court in which charges based on the arrest were filed or,
  • If charges were not filed, in the city or county in which the arrest occurred.

The petition must then be legally served on both:

  • The prosecuting attorney of the city or county in which the arrest occurred, and
  • The law enforcement agency that made the arrest.18

Penal Code 851.91 requires the following information to be provided with the petition to seal the arrest record:

  • The petitioner’s name and date of birth.
  • The date of the arrest for which sealing is sought.
  • The city and county where the arrest took place.
  • The name of the law enforcement agency that made the arrest.
  • Any other information identifying the arrest, such as a case or court number.
  • The alleged offenses upon which the arrest was based or charges were filed.
  • A statement that the petitioner is entitled to have his or her arrest sealed either as a matter of right or in the interests of justice, as applicable.
  • If the petition is based on the interests of justice, a statement of how those interests would be served by granting the petition and declarations in support.19

9.2 The hearing

If the District Attorney contests the petition the court will schedule a hearing.

The county in which you live will determine whether you must personally appear in court for the proceedings or whether your criminal defense attorney can appear on your behalf.

At the hearing the judge will examine the arrest record and, if necessary, evidence of why sealing is in the interests of justice.

Because the judge has so much discretion in deciding whether to grant or deny your motion to seal and destroy your California arrest records — and because the judge can deny your motion with prejudice so that you may not re-file your request — it is critical to hire a skilled California criminal defense attorney.

A responsible attorney will thoroughly research your court case and make sure all paperwork is done correctly the first time to ensure that no time is lost due to incomplete or inadequate forms. S/he will also conduct the PC 851.87 hearing and argue your case to the judge.

10. How long does it take?

If your criminal record is eligible for an automatic seal pursuant to the Clean Slate Act, your record should be cleared within a month. Otherwise, it typically takes about ninety (90) days after filing a petition to get a court order to seal an arrest record in California.

Within 30 days of the court’s issuance of the order to seal an arrest record, the court will notify:

  • The law enforcement agency or agencies that made or participated in the arrest,
  • The law enforcement agency that administers the master criminal history records, and
  • The California Department of Justice.

The petitioner’s master criminal record and court record will then be updated to note that the arrest has been sealed. The file will be stamped that the record may not be released outside the criminal justice sector.

The responsible local law enforcement agency will ensure that this information is included in all master copies, digital or otherwise, of the police investigative report related to the arrest that was sealed.

Arrest records, police officer investigative reports, and court records that are sealed under this section shall not be disclosed to any person or entity except:

  • The person whose arrest was sealed, or
  • A criminal justice agency (which may use the information to the same extent as if the arrest had not been sealed).20

11. What remedy do I have if a sealed arrest record is released?

Improper dissemination of a sealed arrest can be punished by a civil penalty of between $500 and $2,500 per violation. The penalty may be enforced by a city attorney, district attorney, or the Attorney General.

The person affected may also have the right to bring a lawsuit for compensatory damages or possibly even punitive damages (if the release was reckless or intentional).

Our California personal injury lawyers offer free consultations to people who have suffered damages as a result of their arrest record being unlawfully released.

12. What is the difference between sealing arrest records and sealing juvenile records?

Sealing and destroying an adult arrest record under PC 851.87 is a completely different process from sealing a juvenile record. You are eligible to seal your California juvenile criminal record if

  • You are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
  • As an adult, you have not been convicted of any crimes involving moral turpitude (that is, crimes that involve dishonesty or immoral behavior), and
  • There is no pending civil litigation based on the juvenile incident.21

 

 

Legal references:

  1. Penal Code 851.91; 851.92(b)(2)(B). See, for example, People v. E.B.(Cal. App. 6th Dist., 2020) 51 Cal. App. 5th 47. Before the enactment of SB 393, it was difficult for someone whose arrest did not result in a conviction to get the arrest record sealed. The person essentially had to prove to bring a petition for factual innocence per PC 851.8 and show that the person never should have been arrested — even when the prosecutor never filed charges or the charges were later dismissed. The arrest would then show up on the criminal background checks run by potential employers, landlords and others, leading to unfair discrimination against innocent people. Under the new law, all a person must do is demonstrate to a judge that the arrest did not result in a conviction (“legal innocence”). The burden then shifts to the prosecutor to prove that the applicant is NOT entitled to have his or her record sealed (for instance because the person has a background of domestic violence).
  2. SB-731. AB 1076. PC 1203.045. PC 851.93. See old Penal Code 851.8 PC. The old procedure required people who were arrested but not charged to submit a “petition to seal and destroy arrest records” to the relevant law enforcement agency. Not hearing back in 60 days indicated the agency denied the petition. Otherwise, the agency would seal the record and – after three years – physically destroy it. Finally, a petition for factual innocence would need to be filed with the relevant superior court, which will then hold a hearing on the matter. In cases where there were charges followed by a dismissal or acquittal, the person would instead submit the petition to the court and D.A. rather than the police agency. The court would then hold a hearing on the matter.
  3. California Penal Code 851.91(a)(1)(A).
  4. Penal Code 851.91(a)(1)(B)(i).
  5. Penal Code 851.91(a)(1)(B)(ii) & (iii).
  6. Senate Bill 731 (2022). Penal Code 851.93. Soumya Karlamangla, California Will Soon Have the Nation’s Most Expansive Record-Clearing Law, NY Times (November 28, 2022).
  7. Penal Code 851.91(a)(2)(A).
  8. Penal Code 851.91(a)(2)(B).
  9. Penal Code 851.91(a)(2)(C). Note that the mere existence of bench warrants or failures to appear that were adjudicated before the case closed with no conviction do not establish intentional evasion.
  10. Penal Code 851.91(a)(2)(D).
  11. Penal Code 851.91(c)(2).
  12. Penal Code 851.91 (e)(2)(B)(i).
  13. Penal Code 851.92 (b)(6).
  14. Penal Code 851.91 (e)(2)(B)(iv).
  15. Penal Code 851.91 (e)(2)(B)(iii).
  16. Penal Code 851.91 (e)(2)(B)(ii).
  17. Senate Bill 731 (2022). Penal Code 851.93.
  18. Penal Code 851.91 (b)(1)(B) & (D).
  19. Penal Code 851.91(b)(1)(E).
  20. Penal Code section 851.92(b)(2)(B)(6).
  21. California Welfare and Institutions Code 781 and 781.5.
  22. source

 

To Learn More…. Read MORE Below and click the links Below 

Abuse & Neglect – The Mandated Reporters  (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
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To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

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We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

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We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

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Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

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We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

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We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

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We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 118 PC – California Penalty of “Perjury” Law

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Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

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Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

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]]> Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC https://goodshepherdmedia.net/expungement-california-how-to-clear-criminal-records-under-penal-code-1203-4-pc/ Tue, 25 Jan 2022 04:25:04 +0000 https://goodshepherdmedia.net/?p=9772 Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

An expungement under California Penal Code 1203.4 PC allows you to withdraw a plea of guilty or no contest, to reenter a plea of not guilty, and to have the case dismissed. When the court grants it, an expungement releases you from many of the negative consequences of a criminal conviction.

The language of the code section states that:

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 they are 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 their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if they have 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, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted, except as provided in Section 13555 of the Vehicle Code.

Who is eligible to have a conviction expunged?

Expungement is available to you if you were convicted of either California misdemeanors or felonies provided that:

  • You have successfully completed probation for the offense, and
  • You either:
    • Did not serve time in state prison for the criminal case, or
    • Served time in state prison, but would have served it in the county jail had the crime been committed after implementation of “Realignment” under Proposition 47.1

Note that the California Department of Justice reviewed and sealed all past marijuana convictions that are no longer considered crimes now that recreational marijuana is legal. This process should have been done by July 1, 2020. See California Assembly Bill 1793 (2018).

What does a California expungement do?

Under Penal Code 1203.4, an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.2

One particular benefit is that an expunged conviction does not need to be disclosed to potential employers on job applications.

As it is, California’s ban the box law, AB 1008, bars employers from asking about your criminal record until there is a conditional offer of employment.

But once a conviction has been expunged under California law, it does not have to be disclosed to an employer even after the employer makes a conditional offer of employment.

Who is not eligible for an expungement in California?

You are not eligible for expungement if you:

  • are currently charged with a criminal offense,
  • are on probation for a criminal offense or
  • are serving a sentence for a criminal offense.

You are also not eligible for expungement if you are convicted of certain sex crimes involving children.

If you are not eligible for expungement, you may be able to get relief for your offenses through:

1. How the California expungement process works

An expungement is a form of post-conviction relief authorized by California Penal Code 1203.4 PC. It releases you from “all penalties and disabilities” arising out of a conviction.

As criminal defense attorney John Murray3 explains,

“In today’s economy — where finding a job is tougher than ever — you want to do everything in your power to make yourself the most desirable candidate.  Clearly, this includes being able to state that you have a clean criminal record–something that a PC 1203.4 expungement may allow you to do.”

Expungements are also beneficial for securing or maintaining California professional licenses and for joining many professional organizations.  Dismissal of an offense offers a “fresh start” from an otherwise criminal past.

1.1. Who is eligible to get a California expungement?

As a basic rule, Penal Code 1203.4 PC authorizes an expungement for a misdemeanor or expungement for a felony offense provided you:

  1. successfully completed probation (either felony probation or misdemeanor probation), and
  2. are not currently:
  • charged with a criminal offense,
  • on probation for a criminal offense, or
  • serving a sentence for a criminal offense.4

If you are applying for PC 1203.4 relief, you must have successfully completed probation in its entirety (or obtained an early termination of probation, discussed below).

What does it mean to “successfully complete probation”?

“Successfully completing probation” means that you:

  1. completed all the terms of your probation (that is, paid all fines and restitution, completed any counseling programs, community service, etc.),
  2. attended all required court appearances (either personally or through an attorney), and
  3. did not commit any new crimes while on probation.

How does “realignment” affect eligibility under PC 1203.4?

If you went to California state prison — either at the time of judgment or because of a probation violation — you do not generally qualify for a PC 1203.4 expungement.

But there is an exception if you would have served your sentence in county jail if you had committed the crime after “realignment.” (For more information, please see the discussion on Penal Code 1203.42 in Section 1.4, below).5

Can prisoners who worked as firefighters through a prison fire camp get an expungement?

In many cases, yes. And you may be able to get your parole waived. Learn more here: California Assembly Bill 2147 (2020).

1.2. Who is NOT eligible to get a California expungement?

As noted above, a conviction cannot be expunged if you were sentenced to state prison UNLESS the crime is one for which you would now be sentenced to jail.

Beyond that, there are also certain felony offenses that can never be expunged. These include serious sex offenses committed against children, such as

1.3. Can I get an expungement if I violated (or didn’t satisfy) my probation?

It is generally true that you must have successfully completed all conditions of probation to be granted an expungement.

But even if you received a probation violation, all hope is not lost. The court will hold a special hearing to determine whether you are nonetheless a good candidate for expungement.7

The court’s discretion to dismiss a conviction

In the wake of a probation violation, the court has wide discretion as to whether to grant or deny a petition for a PC 1203.4 expungement. Factors that the judge may consider include (but are not limited to):

  • your overall performance while on probation,
  • the seriousness of the underlying conviction,
  • your criminal history, and
  • any additional evidence that shows why you are deserving of this relief, such as
    • opportunity to obtain a good job,
    • support of the applicant’s family,
    • strong community ties, etc.

1.4. What if I could have been sentenced to county jail under Prop 47 realignment?

If you were convicted and sentenced to state prison, you may still be able to expunge a conviction. You are eligible if you would have been sentenced to jail for the crime had it been committed after 2011’s Proposition 47 Realignment legislation.

This exception is found in California Penal Code 1203.42 PC. Relief under Penal Code 1203.42 is not automatic but may be granted by a court, in its discretion. Judges can grant the expungement if they believe it would be in the interests of justice.

To qualify under PC 1203.42, the crime must have been one currently punishable in county jail AND:

  • at least two years have passed since you completed your sentence, and
  • you are not:
    • under supervised release for a crime,
    • serving a sentence for any offense,
    • on probation for any offense, or
    • charged with the commission of any crime.

How do I obtain an expungement under PC 1203.42?

The expungement process in California starts by filing a petition with the court under Penal Code 1203.42. You may make the application:

  • in person,
  • by an attorney, or
  • by a probation officer authorized in writing.

The court may then either:

  1. Permit you to withdraw your plea of guilty or “nolo contendere” (no contest) and enter a plea of not guilty, or,
  2. If you have been convicted after a plea of not guilty, set aside the verdict of guilty.

In either case, the court will then dismiss the accusations against you. Afterward, you will be released from all penalties and disabilities resulting from the offense to the same extent as a regular expungement under PC 1203.4.

2. How do I expunge a criminal record in California?

Expunging criminal records in California requires the following five steps:

The expungement process is confusing and time- and paperwork-intensive. There are many opportunities for error that could get an application denied. But experienced criminal defense attorneys know how to streamline the process and get it right on the first try.

Step 2: Fill out the proper forms

A criminal defense attorney knows which forms to use for each situation. Otherwise, most expungement application forms are available at the relevant courthouse or through an internet search.

For example, if you completed misdemeanor probation, you would fill out a petition to dismiss a misdemeanor under PC 1203.4. If probation has not been completed, you would instead fill out a motion to terminate probation. And if that is denied, you would fill out a petition for dismissal.

Note that felonies cannot be expunged until they get reduced to misdemeanors. Courts usually grant requests to reduce wobblers (crimes that can be felonies or misdemeanors) down to misdemeanors.

But non-wobbler felonies can only be reduced to a misdemeanor by filling out a form pursuant to PC § 17(b)(3). Only then can you fill out a petition to dismiss a misdemeanor under PC 1203.4.

Also note that you must fill out one form for each conviction to be expunged. You can also include character references with the expungement petition.

Step 3: File for expungement

Once the proper forms are filled out, they must be filed with the court where the case was heard. The court will usually respond within five months.

Every court has its own policies and fees. Sometimes expungement forms must be delivered in person or mailed.

Timely filing paperwork is critical. For example, you must provide the prosecutor with at least 15 days’ notice prior to the hearing. This is to give the prosecutor an opportunity to review the case and object if desired.

If you are indigent, you may be able to get financial assistance to cover the filing fees.

Step 4: Prepare for the expungement hearing

Whether you have to appear at your expungement hearing depends on the case. Your criminal defense attorney will keep you informed and help prepare for the hearing if necessary.

Ultimately, the judge makes the decision whether to grant an expungement. There is no jury. You are more likely to get an expungement if you:

  • are able to hold down a job,
  • had no additional convictions, and
  • have completed all required community service.

Step 5: Refile if the petition is denied. Seal the expungement if the petition is granted.

If the judge denies the expungement, after six months you can file a new petition with any required changes.

If the judge grants the expungement, the defense attorney should then seal the case so it is no longer visible to the public. And you can deny ever having a criminal record in most situations. Some exceptions are if you:

  • run in public elections,
  • apply for a state license, or
  • seek employment with the California Lottery Commission.

2.1. What an expungement can do

There are numerous benefits to obtaining a California expungement. Some of the most significant include:

  • An employer may not discriminate against your job application based on expunged convictions9;
  • Easier to obtain a state professional license;
  • Expunged convictions can’t be used to impeach your credibility as a witness in court (unless you are the defendant being prosecuted in the subsequent case);10 and
  • In some cases, helping avoid certain immigration consequences such as deportation.

Limitations on the disclosure of expunged convictions to potential employers

The value of a PC 1203.4 expungement has increased significantly in recent years.

This is because, in the past, your criminal history was unlikely to be discovered by anyone but law enforcement.

But then information companies began indexing criminal court records into vast national databases that could be searched by name and date of birth.

This new technology allows:

  • potential employers,
  • licensing agencies, and
  • professional organizations

to conduct a background check and find a criminal record in moments.

This is where the benefits of an expungement come into play. It is easy now for potential employers to find out about a past criminal conviction.

But legally if a conviction has been expunged, they may not use it to deny you employment.

2.2. What an expungement will NOT do

Unfortunately, there are several limitations on what an expungement under California Penal Code 1203.4 PC can do. For example, an expungement will not:

Expunged convictions may also still be used as prior convictions to enhance sentencing. For instance, an expunged DUI conviction still counts as a prior if you are later arrested for another DUI.

And an expunged conviction that would count as a “strike” for purposes of California’s three-strikes law is still a strike.14

How to obtain the relief an expungement cannot grant

Additional rights can often be restored through alternative avenues of post-conviction relief.

These include:

  • A California Certificate of Rehabilitation, and/or
  • A California Governor’s Pardon15

2.3. When can I apply for a PC 1203.4 expungement?

If you are eligible under PC 1203.4, you may petition the court to expunge a conviction on the earlier of:

  • completion of probation, or
  • early termination of probation (which must be granted by a court).

(Note that if you qualify under PC 1203.42, you may only petition the court if at least two years have passed since the completion of your sentence).

Can I petition for early termination and expungement at the same time?

Many times, a California criminal defense lawyer can expedite the expungement process by “packaging” a number of motions into one.

The most common example of such packaging includes asking the court in a single proceeding to:

  • grant an early termination of probation (which the court has the option of granting as long as the petitioner is in compliance with the terms of his or her probation),
  • reduce a felony to a misdemeanor (in cases where the felony offense is classified as a “wobbler” — that is, a charge that the district attorney could have filed as either a felony or a misdemeanor), and
  • expunge a conviction.

2.4. What is the difference between expungement and sealing/destroying records?

Many people who contact us about expungements also wish to “seal and destroy” adult and juvenile criminal records.

Sealing and destroying arrest records per SB 383 is a totally different process from expunging records of criminal convictions under PC 1203.4.

You are entitled to have a California arrest record sealed and destroyed if:

  1. you were arrested, but the prosecutor never filed criminal charges, or
  2. the case was dismissed in court, or
  3. you were acquitted by a jury following a jury trial, or
  4. the conviction was overturned and dismissed on appeal, or
  5. you successfully completed a program of diversion, such as Prop 36 drug diversion or Penal Code 1000 deferred entry of judgment,16

Sealing an arrest record generally allows you to state that you have never been arrested for a crime. This is because in order to seal a record the judge must declare you factually innocent.

Sealing a juvenile arrest record

Sealing a California juvenile court record provides you with the same benefits as sealing an adult record. You may seal a juvenile arrest record if:

  1. you are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
  2. as an adult, you have not been convicted of any crimes of moral turpitude (that is, a crime involving dishonesty or immoral behavior), AND
  3. there is no pending civil litigation based on the juvenile incident.

Once the judge grants the motion to seal and destroy a juvenile arrest record it is sealed for 3 years and destroyed thereafter.17

3. Frequently Asked Questions about California Expungement Law

Q. How long will my criminal record stay on the books after I get an expungement?

A. Criminal records are maintained indefinitely even if a conviction was expunged under Penal Code 1203.4 PC. Criminal records do not automatically go away after a certain amount of time.

If the court doesn’t expunge or seal and destroy the record(s), the conviction(s) will always be a part of your criminal record.

Q. Who can access my criminal record after I get an expungement?

A. Criminal records are “public records.” So anyone can access a criminal record even after a PC 1203.4 expungement — unless the record is sealed.

People who often access criminal records include:

  • potential employers,
  • landlords, and
  • licensing agencies.

Q. What happens when I expunge my record?

A. In California, when a record is expunged, a plea of guilty or no-contest (or a conviction after trial) gets set aside by a judge. You then enter a new plea of “not guilty” and the judge dismisses the case.18

Q. How long does it take to expunge my record?

A. Generally, we can have a PC 1203.4 petition filed and heard within one to two months. But this can vary depending on the county in which you reside.

In cases where you are actively seeking employment, we can seek to expedite the process.

Q. How do I find out if I qualify to have my record expunged?

A. Generally, you qualify for an expungement under Penal Code 1203.4 if you:

  1. committed a felony or misdemeanor and were not incarcerated in the California state prison,
  2. fulfilled the terms of your probation, and
  3. were not convicted of one of the specific crimes that make you ineligible to receive a California expungement.19

But, to make sure, contact a California criminal defense attorney.

Q. What is “felony reduction”?

A. If you were convicted of a “wobbler” (that is, a crime that can be charged as either a felony or misdemeanor), you can generally petition to reduce the felony conviction to a misdemeanor.20

Q. Will you reduce my felony to a misdemeanor prior to expunging the record?

A. Yes. If your conviction was for a wobbler, we will petition the court to have the felony reduced to a misdemeanor prior to having it expunged under PC 1203.4. We will also ask for an early termination of probation where appropriate.

Q. Does it cost more to have my felony reduced BEFORE expungement?

A. No. The price is the same. Reducing the felony first just expedites the process.

Q. Do I have to appear in court?

A. Generally not.  The California expungement process typically allows a lawyer to appear on your behalf through all stages of the proceedings.21

Q. What is the filing fee for a California expungement?

A. It varies, depending on

  1. the county in which you reside, and
  2. whether you were convicted of a misdemeanor or a felony.

For example, Los Angeles County doesn’t charge a filing fee per se, but will charge a maximum of $120 once the court rules on the motion. San Bernardino County charges a $270 filing fee. San Diego County charges a petition fee of $60 for a misdemeanor and $120 for a felony.

All counties have some type of financial assistance available if you are unable to pay.

Q. How will I know that my California criminal record was expunged?

A. We provide you with a signed order by a California Superior Court Judge setting aside the conviction and dismissing the case.

Q. After my record is expunged, can I answer “No” if I’m asked whether I have a criminal record?

A. Yes. This is one of the benefits of obtaining a PC 1203.4 California expungement. Once the court grants an expungement, you can legally answer “no” if asked about a criminal record UNLESS:

  1. You are applying to become a peace officer or run for public office,
  2. You are applying to work for the California Lottery Commission, or
  3. You are applying for a state license.22

Q. Will expunging my record help me find a better job?

A. Many times, yes.  If the employer doesn’t run a background check, they will probably never find out about the conviction. Remember — you no longer have to disclose any conviction unless and until the employer makes a conditional offer of employment.

But even if an employer does conduct a background check, it will show if a conviction was expunged. This will tell the potential employer that a California court has said you are ready to make a “fresh start”.

Q. Will expunging my record help me obtain a state license?

A. Often times, yes. Many California state licensing authorities require expungement of a conviction under Penal Code 1203.4 PC before they will issue a license.

But even when an expungement is not enough, we may be able to help you obtain a “Certificate of Rehabilitation,” which offers even more benefits.23

Q. What is a “Certificate of Rehabilitation”?

A. A Certificate of Rehabilitation (“COR”) is a court order stating you have been rehabilitated from your criminal past.24

You must wait between seven (7) and ten (10) years after being released from custody, depending on the specific offense for which you were convicted.25

There are many benefits to a Certificate of Rehabilitation, including:

  1. A certificate of rehabilitation becomes an automatic application for a Governor’s Pardon;
  2. You cannot be denied a state license without other cause;
  3. A COR sends a message to prospective employers that you have overcome your criminal history and are prepared to make a fresh start.

But remember — an expungement or COR is not necessary for an arrest that did not result in a conviction. Employers (and prospective employers) may not discriminate against you based simply on arrests. In fact, they aren’t even legally allowed to inquire about them.26

Q. What is a Governor’s Pardon?

A. A Governor’s Pardon is the ultimate relief from the penalties and disabilities associated with a criminal conviction.27

You must usually wait at least ten (10) years after being discharged from probation or parole in order to apply to the governor for a pardon. Or you must obtain a finding of factual innocence (discussed above under section 2. sealing and destroying records).28

If you receive a Certificate of Rehabilitation, you may apply for a pardon in as little as seven (7) years after release from custody. This is because a COR acts as an automatic application for a pardon.

Q. What are my options for sealing and destroying my California arrest records after I get an expungement?

A. There are a number of ways to seal records. The most common are:

  1. sealing of juvenile records,
  2. sealing of arrest records, and
  3. sealing of records after plea withdrawal and case dismissal.

Juvenile arrest records

In order to be eligible for sealing a juvenile record, two criteria must be met:

  1. The juvenile court jurisdiction must have terminated at least five years ago.
  2. You must not have suffered a conviction for a crime of moral turpitude (that is a dishonest or immoral crime) as an adult.29

But even if these two criteria have been met, certain serious crimes cannot be sealed.30 These crimes include:

  • murder,
  • robbery and
  • child molestation.

Sealing of records generally

Except as set forth above, sealing an arrest record is generally possible if

  1. You were arrested and no accusatory pleading was filed,
  2. The DA dismissed the case, or
  3. You were found “not guilty” after a California jury trial.31

Also, if you prove that you were factually innocent of the charges, the arrest record will be ordered sealed for 3 years and destroyed thereafter.32

Q. I have a felony and can’t get a green card or citizenship. Can you help me?

A. Many times, yes. We are often able to get a non-U.S. citizen’s wobbler felony reduced to a misdemeanor. This makes you eligible for permanent residency and ultimately U.S. citizenship. Or we may be able to get a conviction set aside completely.

Once we review the facts and circumstances of your case, we research the most promising options to help avoid immigration issues such as deportation or removal.

Q. I am required to register as a sex offender pursuant to California Penal Code 290 PC.  Can an expungement help me obtain relief from my lifetime duty to register as a sex offender and get off Megan’s list?

A. No.  A California Penal Code 1203.4 PC expungement cannot provide this type of relief. But a Certificate of Rehabilitation and Governor’s pardon often can, as long as the conviction was not for a sex crime against a child.33

source

What Is California Penal Code 1203.4?

California Penal Code (CPC) 1203.4 outlines the legal process for expungement of certain criminal convictions in California.

“Expungement” means a criminal conviction is set aside or dismissed after completing certain criteria (e.g., probation).

It allows you to legally state that you weren’t convicted of the offense, which can help improve job prospects, secure or maintain professional licenses, and join certain organizations.

Who Is Eligible for a 1203.4 Expungement (California)?

Under California Penal Code Section 1203.4, you’re eligible for expungement if:

  • You’ve been convicted of a misdemeanor or felony and successfully completed probation.
  • You’ve been convicted of a misdemeanor or felony and weren’t placed on probation — in this case, you can only petition one year after the date of conviction.

To clarify, you need to meet all terms to “successfully complete probation,” including:

  • Paying fines and restitution
  • Completing counseling programs, community service, etc.
  • Attending all court appearances
  • Not committing new crimes while on probation

Also, to be eligible, you can’t currently be:

  • Charged with a criminal offense
  • On probation for a criminal offense
  • Serving a sentence for a criminal offense

What Crimes Are Not Eligible for Expungement in California?

If you were sentenced to state prison, you generally don’t qualify for expungement under CPC 1203.4.

In addition, some criminal offenses can never be expunged, including sex crimes against children like:

  • Sodomy with a Minor (Penal Code Section 286(c))
  • Lewd and Lascivious Acts with a Minor (Penal Code Section 288)
  • Oral Copulation with a Minor (Penal Code Section 288a(c))
  • Unlawful Sexual Intercourse with a Minor (Penal Code Section 261.5(d))

9 Benefits of Getting an Expungement of Criminal Records in California

Everyone eligible for expungement under CPC 1203.4 or 1203.4a should petition for it.

This is because having a clean criminal record comes with several benefits:

  1. It helps with employment — you won’t have to disclose your conviction on job applications.
  2. It forbids employers from discriminating against you due to your criminal records.
  3. It may make it easier to get state professional licenses.
  4. It may reduce barriers to immigration and related issues.
  5. You’ll regain certain civil rights, like the right to vote and serve on a jury.
  6. It’ll improve your eligibility for government assistance programs.
  7. It’ll boost your eligibility for housing and rental applications.
  8. It’ll reduce the negative social stigma that comes with having a criminal record.
  9. It makes it easier to adopt a child.

4 Things CPC 1203.4 Does NOT Do

There are several benefits to getting your criminal records expunged under CPC 1203.4, but it isn’t a silver bullet. You’ll still have some limitations that come with a past conviction:

  1. Record expungement won’t lift driving privilege restrictions or reinstate a suspended or revoked driver’s license.
  2. It won’t restore your gun rights in California if your conviction prevents firearm ownership.
  3. It won’t exempt you from registering as a sex offender under Penal Code Section 290.
  4. If you’re charged in the future, your expunged conviction will still count as a prior conviction and may increase your sentence.

You’ll have to address these limitations through other means. Your gun rights can be restored with a Governor’s Pardon, for example.

4 Steps to Expunge Your Criminal Records under California Penal Code 1203.4

To expunge your criminal records under CPC 1203.4, you need to take the following four steps:

1. Hire an Attorney

The expungement process is complex and paperwork-heavy. Most people end up making mistakes that lead to their petitions being denied.

2. Fill Out the Required Forms

A criminal defense attorney knows which forms to use. You can find most of these documents at your local courthouse or on the internet:

  • Use the PC 1203.4 petition form for misdemeanors with completed probation.
  • File a motion to terminate probation for uncompleted probation — if that’s denied, you need to fill out a petition for dismissal.

Felonies need to be reduced to misdemeanors before being expunged. You can request a court to reduce your wobbler offense.

For non-wobbler offenses, you need to fill out a form under PC § 17(b)(3) before petitioning for dismissal under PC 1203.4.

3. File for Expungement

After filling out the correct forms, you need to file them with the court where your case was heard.

Every court has its own policies and fees — this is where things get tricky:

  • You may have to deliver the forms in person or through the mail.
  • There are various deadlines to deliver subsequent paperwork.
  • The prosecutor will review your paperwork and my object.

4. Prepare for Your Expungement Hearing

Not everyone has to appear at their expungement hearing. Your defense attorney can help you prepare if needed.

If the judge grants your petition, you need to seal the case to hide it from the public — your defense attorney can do this for you.

If your petition was denied, you can file a new one six months later.

FAQs About California Penal Code 1203.4 (Expungement)

1. What Does “Dismissed per 1203.4” Mean?

In practical terms, “dismissed per 1203.4” means your conviction has been set aside, and you can legally state that you weren’t convicted of the offense.

2. How Do I Get a Dismissed Case off My Record in California?

To get a dismissed case off your record in California, you need to petition the Superior Court that has jurisdiction over your case and file a copy of the petition with the DA’s office.

3. How to Find a Qualified Expungement Attorney in California?

The best way to find a qualified expungement attorney in California is to look at the attorney’s experience and client reviews.

4. Can All Misdemeanors Be Expunged in California?

In California, nearly all misdemeanors can be expunged aside from some Vehicle Code violations and other rare exceptions.

5. What Is Considered a Misdemeanor in California?

A misdemeanor is any offense punishable by fines, probation, community service, or up to one year in county jail.

6. How Long Before You Can Expunge a Felony in California?

We can help you start the felony expungement process once you complete all terms of probation. If you didn’t receive probation, we can begin one year from the date of your conviction.

7. How Much Does It Cost to Get Your Record Expunged in California?

The cost of getting your record expunged in California varies depending on several factors, such as:

  • The complexity of your case
  • Filling fees
  • Attorney fees
  • Notary fees
  • Whether you’re eligible for financial assistance

8. How Long Does It Take to Expunge a Misdemeanor in California?

The time it takes to expunge a misdemeanor in California varies, depending on factors like the specific court’s caseload. It usually takes us two to four months to complete the entire process.

9. Will I Have to Attend a Court Hearing to Get My Records Expunged?

In most cases, a court hearing isn’t necessary. If a hearing is scheduled, we can almost always handle all court appearances for you.

10. What Happens If My Expungement Request Is Denied?

If your expungement request is denied, consulting with an attorney is essential. We can review your case and advise you on whether appealing the judge’s decision or reapplying at a later time is the best course of action.

11. How Do You Check If Your Record Has Been Expunged?

The easiest way to check if your criminal record has been expunged is to visit the court where your case was handled and ask to see the records. If the court tells you they don’t have your records, it means they were expunged.

12. Can Employers See Expunged Records (California)?

Typically, employers can’t see expunged records on a standard background check.

13. Do I Have to Disclose Expunged Records in California?

Generally, you don’t have to disclose expunged records in California. Exceptions include:

  • Applying for law enforcement or government agency jobs
  • Dealing with certain immigration matters
  • Applying for a state license
  • Running in public elections
  • Applying for a license, contract, or job with the State Lottery Commission

14. Can Police See Expunged Records in California?

Expunged records are inaccessible to general law enforcement. Under exceptional situations, they may be retrieved and used; but it typically requires a court order or statutory authorization.

15. Does 1203.4 Restore Gun Rights?

Expungement under 1203.4 does not restore gun rights if your conviction disqualified you from owning firearms (e.g., you were convicted of a violent felony such as murder, robbery, assault with a deadly weapon, etc.).

16. Can You Become a Police Officer with an Expunged Felony in California?

Technically, you can become a police officer with an expunged felony in California, but it’s very unlikely you’ll qualify. Talk to the police department you want to apply for to find out what their policy is.

17. What Is the Difference Between 1203.4 and 1203.4 A?

As we mentioned above, CPC 1203.4 focuses on expungement after probation.

California Penal Code 1203.4a allows you to petition to have infractions and misdemeanors with no probation expunged from your record one year after the conviction date.

18. What Is the Difference Between a Pardon and an Expungement in California?

An expungement under CPC 1203.4 seals your criminal conviction — for most purposes, it’s as if it never happened.

A pardon restores certain rights such as firearm and voting rights. However, your records will still show in background checks.

20. What Is the New Law for Expungement in California 2023?

The new law for expungement in California — SB 731 — is a transformative bill for those living with the consequences of having a criminal record. It came into effect on July 5, 2023.

Get a Second Chance at Life: Expunge Your Criminal Records with Legal Help

source

 

What is the new leaf program ?

EXPUNGEMENT OF CRIMINAL RECORDS IN CALIFORNIA – PENAL CODE 1203.4 PC

Criminal Defense Lawyers Helping People Expunge Convictions From Their California Criminal Record

How to Expunge Criminal Records in California – Penal Code 1203.4 PC

A PC 1203.4 expungement of criminal record is an option for defendants who have successfully completed probation.

Expungement of criminal records in California in covered under Penal Code Section 1203.4. If you have been convicted of a crime, it’s typically very difficult to find a job and move forward with your life.

Most employers and landlords now routinely run background checks, which will reveal your past criminal history.

This clearly means if you have been convicted of crime, getting your criminal record expunged can have a impact on your quality of life.

So, what exactly does it mean to have your criminal record expunged?

In basic terms, it releases you from the penalties associated with your criminal conviction, meaning a potential employer in theory is prohibited from using your past conviction against you in their hiring decision or even asking you about it in the job interview.

Therefore, an expungement, pursuant to Penal Code Section 1203.4, can be an important step to make sure your life is not permanently impacted by a past criminal conviction.

It’s important to stop here for a moment and make a very critical note that California has no legal process for an actual expungement, which would completely seal a criminal conviction.

Most people incorrectly refer to a section 1203.4 dismissal as an expungement, believing their past conviction will be removed or erased from their record, known as a rap sheet..

This is a common myth and false. Instead, when a 1203.4 dismissal is granted, the court will vacate your conviction and enter a dismissal notation on your.

Once your conviction is dismissed, you can truthfully answer on an employment application that you have never been convicted of a crime.

However, many background checks will still show the conviction and dismissal, but the law prohibits an employer from using a dismissed conviction against you in hiring decisions.

See related information: Reduce a Felony Conviction to Misdemeanor and Early Termination of Probation in California.

If you were convicted of a crime in California and are seeking an expungement, call a Los Angeles criminal defense lawyer at Eisner Gorin LLP.

Our attorneys will need to closely review the details of your conviction in order to determine eligibility and legal options.

Expunged criminal records can certainly have an impact on your ability to obtain a job.

Now that we have covered the basic concept of an expungement, let’s take a closer look below.

CALIFORNIA PENAL CODE SECTION 1203.4 – EXPUNGEMENT

A California expungement of criminal records under Penal Code Section 1203.4 is an option for defendants convicted of either misdemeanors or felonies that have successfully completed probation and not served time in state prison.

The legal definition states, in part:

  • In any case in which a defendant has fulfilled the conditions of probation, or in any other case in which a court, in its discretion in the interests of justice, determines that a defendant should be granted the relief, the defendant shall be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or if they were convicted after a plea of not guilty, the court shall set aside the verdict of guilty and dismiss the accusations against the defendant and shall thereafter be released from all penalties and disabilities resulting from the offense of which they were convicted.

This means you are eligible to petition the court to get your criminal records expunged once you have completed your entire probationary period.

If the court decides to terminate your probation before the end of the probationary period, you can petition for an expungement when the probation ends.

If you were convicted of a misdemeanor offense or an infraction and not granted probation, you can petition to have your criminal record expunged after one year the court issued judgment.

WHO IS ELIGIBLE FOR A CALIFORNIA EXPUNGEMENT?

The following categories of people are eligible to expunge their criminal record under California under Penal Code Section 1203.4:

  • If you were convicted of a misdemeanor or felony offense and have successfully completed probation, then you can petition the court to have the conviction dismissed; You will need to petition the court to have certain felony convictions reduced to a misdemeanor before being dismissed;
  • If you were convicted of a misdemeanor or felony offense and never placed on probation, you can petition the court to have the conviction dismissed after one year from the date of conviction.

It’s important to note that successfully completing probation means you completed all the terms of your probation, including paying all fines, restitution, completed any counseling programs, community service, attended all required court appearances, and did not commit any new crimes while you were on probation.

In some cases, even if you violated the terms of your probation, it might be possible to still have your record expunged.

The court will hold a hearing in order to determine whether to grant your request for an expungement.

Call a Los Angeles criminal defense attorney at our law office if you have any questions about expungement eligibility.

WHO IS NOT ELIGIBLE FOR A CALIFORNIA EXPUNGEMENT?

If you were sent to a California state prison sentence, you can’t expunge your criminal record.

Additionally, there are certain criminal offenses that can’t be expunged. This includes some sex crimes against children, including:

  • California Penal Code Section 286(c) – Sodomy with a Minor,
  • California Penal Code Section 288 – Lewd and Lascivious Acts with a Minor,
  • California Penal Code Section 288a(c) – Oral Copulation with a Minor,
  • California Penal Code Section 261.5(d) – Unlawful Sexual Intercourse with Minor.

WHAT IMPACT CAN AN EXPUNGEMENT HAVE ON MY LIFE?

Typically, one of the most significant impacts on your life after a California expungement is helping you obtain employment.

In many cases, you do not have to disclose a criminal conviction on an employment application and an employer is prohibited from discriminating against you for having your record expunged.

An expungement may also help you obtain a state professional license and could even help you avoid immigration issues.

After your conviction has been expunged from your record, it will still show you were arrested and convicted, but the conviction was dismissed in the interest of justice.

This is not the same as a factual innocence motion.

WHAT A PENAL CODE SECTION 1203.4 DISMISSAL DOES NOT DO

After your California conviction has been dismissed under PC 1203.4, there are some limitations on what it can do for you, including:

  • If your conviction resulted in any driving privilege restrictions, a dismissal will not change the restrictions;
  • A dismissal will not reinstate a suspended or revoked driver’s license;
  • If you conviction prevents you from owing or possessing a firearm, a dismissal will not restore your California gun rights;
  • A dismissal will not end your legal obligation to register as a California sex offender under Penal Code Section 290;
  • If you are convicted on another criminal offense in the future, your dismissal can still be used as a prior conviction to enhance sentencing;

In some cases, the issues listed above could possibly be resolved through other avenues of post-conviction relief, including a California Certificate of Rehabilitation or a California Governor’s Pardon. source

 

Cleaning Up Your Record

Penal Code 851.8 PC – Certificate of Factual Innocence in California

SB 393: The Consumer Arrest Record Equity Act – 851.87-851.92  & 1000.4-11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons Click Here for the Details

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

PENAL CODE – PEN 1203.4 

PART 2. OF CRIMINAL PROCEDURE [681 – 1620]

  ( Part 2 enacted 1872. )

  TITLE 8. OF JUDGMENT AND EXECUTION [1191 – 1233.12]

  ( Title 8 enacted 1872. )

  CHAPTER 1. The Judgment [1191 – 1210.6]

  ( Chapter 1 enacted 1872. )

(a) (1) When 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 interest 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 they are not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense, be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if they have 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, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in their probation papers, of this right and privilege and the 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 them 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 custody or control of a firearm or to prevent 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) Dismissal of an accusation or information pursuant to this section does not release the defendant from the terms and conditions of an unexpired criminal protective order that has been issued by the court pursuant to paragraph (1) of subdivision (i) of Section 136.2, subdivision (j) of Section 273.5, subdivision (l) of Section 368, or subdivision (k) of Section 646.9. These protective orders shall remain in full effect until expiration or until any further order by the court modifying or terminating the order, despite the dismissal of the underlying accusation or information.

(5) 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 a misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287 or of former Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or a felony conviction pursuant to subdivision (d) of Section 261.5, or to an 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 interest of justice, may order the relief provided pursuant to subdivision (a) to that defendant.

(3) (A) A petition for relief under this section shall not be denied due to an unfulfilled order of restitution or restitution fine.

(B) An unfulfilled order of restitution or a restitution fine shall not be grounds for finding that a defendant did not fulfil the condition of probation for the entire period of probation.

(C) When the court considers a petition for relief under this section, in its discretion and in the interest of justice, an unpaid order of restitution or restitution fine shall not be grounds for denial of the petition for relief.

(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 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement when 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 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 287 or of former Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.

(Amended by Stats. 2022, Ch. 734, Sec. 3. (SB 1106) Effective January 1, 2023.)

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