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AWARD WINNING SAN DIEGO CRIMINAL ATTORNEY

San Diego Expungement Attorney

California Penal Code section 1203.4 is an avenue by which individuals who have suffered a conviction can get their record “expunged.”  It is important to note however, that the commonly used term “expungement” is really a misnomer when used in the Californian context.  Many individuals applying for California Penal Code section 1203.4 relief mistakenly believe that the case would be “wiped” or “sealed” from their records.  But, that is not the case because in California, there is no true “expungement.”  The relief that California Penal Code section 1203.4 provides is a dismissal of the case after the fact.    What this means is that the conviction will still show up on the individual’s “rap sheet” but a notation that the case was later dismissed would be added.  

BENEFITS OF APPLYING FOR CALIFORNIA PENAL CODE SECTION 1203.4 RELIEF

Despite the fact that California Penal Code section 1203.4 does not provide a true “expungement,” there are still important benefits of applying for California Penal Code section 1203.4 relief.   Here are some examples of why an individual should apply for such relief: 

  • With certain limitations, after the court grants the California Penal Code section 1203.4 petition, the law states that the person will be released from all penalties and disabilities resulting from the offense.  This will legally allow the individual to answer that he or she has never been convicted of that offense when applying for jobs in the private sector.  By law, potential employers may not use an expunged conviction as basis for denying the individual a job.  
  • If the individual is ever called to testify in a case as a witness, the expungement prevents the use of the prior conviction to be used against the individual for impeachment purposes.  
  • While an individual may still be required to disclose the conviction when applying for state professional licensing, an expungement will be evidence of rehabilitation and thus may help the individual obtain state professional licensing. 

WHAT LIMITATIONS DOES CALIFORNIA PENAL CODE SECTION 1203.4 HAVE?

Despite the many benefits of California Penal Code section 1203.4 relief, there are some very important limitations.  Some of these limitations are:  

  • An expungement will not restore an individual’s right to own or possess firearms.  
  • An expungement will not relieve an individual from having to register as a sex offender pursuant to California Penal Code section 290.  
  • An expunged conviction will still count as a prior if the individual is later charged with commission of another offense.  
  • An expunged conviction may still be used against an individual for immigration purposes.  
  • An expunged conviction must still be disclosed to potential employers when the individual is applying to a government job 
  • An expungement will not automatically renew or reverse the suspension of an individual’s driver license.  

ELIGIBILITY FOR CALIFORNIA PENAL CODE SECTION 1203.4 RELIEF

With very specific limitations, any individual who has suffered a conviction for an offense is eligible for California Penal Code section 1203.4 relief if: 

  • The individual has successfully completed all the terms and conditions of his probation and probation has been terminated.  (If the individual is still on probation, early termination of probation may be possible.  This is discussed below.)
  • Or, if not placed on probation for the offense, the individual has been law abiding for a year.
  • The individual is not on probation for any other case.  
  • The individual was not sent to state prison for the offense or for violating terms and conditions of probation.  

HOW DOES AN INDIVIDUAL PETITION THE COURT FOR EXPUNGEMENT? 

There are specific guidelines that govern the process of getting an expungement.  Here is a general overview of what to expect when petitioning the court for California Penal Code section 1203.4 relief.  

First, the petition must be filed with the court and the prosecuting authority must be given at least fifteen days of notice.   Then, on the hearing date set by the court, the court will evaluate the strength of the petition, hear arguments from both sides, and determine whether a dismissal should be granted at that time.  While an expungement is effective immediately after the court grants the petition, it often takes time for the various agencies to update their systems.  As such, successful petitioners should keep their documents and court order for their own records.   It should also be noted that the court may order the petitioner to pay a filing fee before granting the petition. 

WHAT IF I AM STILL ON PROBATION? 

In certain situations, an individual who is still on probation may ask the court to terminate probation early.  California Penal Code section 1203.3 gives the court discretion to terminate an individual from probation early if certain criteria are met.  Specifically, the court will look to see if: 

  • The individual has completed all the required courses and programs ordered as a term or condition of probation.  
  • The individual has paid all outstanding restitution and/or fines on the case.  
  • There are valid justifications for terminating probation early.   Some of the most common reasons why individuals seek early termination of probation are because the individual is seeking professional licensing, seeking a promotion at work, attempting to secure employment, etc.  

While in theory, an individual can petition a judge to terminate him/her off of probation at anytime after being placed on probation, generally speaking, a judge will want to see satisfactory performance on probation for at least 12 to 18 months before considering terminating probation early. 

HOW DOES AN INDIVIDUAL PETITION THE COURT TO TERMINATE PROBATION EARLY?

To petition the court for early termination of probation, the petition must be filed with the court and the prosecuting authority must be given at least two days of notice.   Then, on the hearing date set by the court, the court will evaluate the strength of the petition, hear arguments from both sides, and determine whether probation should be terminated early.  If probation is terminated early, the individual is immediately eligible to ask for an expungement as explained above, provided that notice was also previously given to the prosecuting authority.  

WHAT ABOUT REDUCING A FELONY TO A MISDEMEANOR? 

Certain offenses can be charged either as a felony or a misdemeanor.  These offenses are referred to as “wobblers.”   Offenses are considered “wobblers” if the penal code specifically states that the offense is punishable by “imprisonment in the state prison or by imprisonment in the county jail.”  If an individual is convicted of a wobbler offense, the court has discretion to reduce the offense to a misdemeanor pursuant to California Penal Code section 17(b).  

BENEFITS OF REDUCING A FELONY TO A MISDEMEANOR

Reducing a felony to a misdemeanor has many benefits.  These benefits include but are not limited to: 

  • Once a felony has been reduced to a misdemeanor, it is considered a misdemeanor for all purposes.  As such, an individual can legally say that he/she has never been convicted of a felony associated with that reduced offense. 
  • Reducing a felony to a misdemeanor may restore an individual’s gun rights with regards to the reduced offense.  This is only applicable if the originally charged offense does not involve domestic violence and does not have gun restrictions when charged as a misdemeanor.  

ELIGIBILITY TO PETITION THE COURT TO REDUCE A FELONY TO A MISDEMEANOR

An individual may petition the court to reduce a felony to a misdemeanor if two requirements are met: 

  • The offense originally charged is a wobbler.  There is an extensive list of offenses that are wobblers.  The most common examples are: 

California Penal Code section 459, burglary

California Penal Code section 245(a)(1), assault with a deadly weapon

California Penal Code section 243(e), spousal battery 

California Penal Code section 422, making criminal threats 

  • The individual did not serve time in the California State Prison for that offense.

If those two requirements are met, the court has discretion to reduce a felony to a misdemeanor.  

HOW DOES AN INDIVIDUAL PETITION THE COURT TO REDUCE A FELONY TO A MISDEMEANOR? 

A petition to reduce a felony to a misdemeanor can be done at several junctures in a criminal case.  A request can be done at the conclusion of a preliminary hearing, at sentencing, and at anytime after the completion of probation.  To petition the court for a reduction, the petition must be filed with the court and the prosecuting authority must be given notice.  It is important to note that because this is a discretionary power of the judge, the judge may take in to consideration several factors in making his or her decision.  Some factors include: the nature of the offense, the specific facts and circumstances of the offense, the performance of the individual on probation, the individual’s criminal history, the individual’s criminal sophistication and chance of recidivism, etc.   Generally speaking, the judge will allow both the prosecuting authority and the defense counsel to argue for their position prior to making his or her ruling.   

OTHER CONSIDERATIONS

It should be noted that a motion to terminate probation early, a petition to reduce a felony to a misdemeanor, and a petition to expunge a criminal record can be done at the same hearing. Sometimes, a court may rule that a motion to terminate probation early is pre-mature.  It is important to note that this ruling does not bar the individual from trying again later on.  

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