The California Penal Code 1203.4 PC outlines the law on the expungement of criminal records. Also known as a dismissal, expungement refers to the release of a person from the negative or detrimental consequences of a criminal conviction. You may be eligible for expungement if you have committed a misdemeanor or felony offense as long as you have completed probation for the crime. You are also eligible for expungement if you did not serve time in state prison for your offense. At times, you may have served time in state prison and still qualify for expungement. This happens if it is evident that you would have served time in the county jail had you committed the crime after realignment under Voter's proposition 47. San Diego Criminal Attorney can help you seek an expungement of your criminal conviction.
California Law on Expungement
An expungement helps to give a person a post-conviction relief by releasing him or her from all effects and penalties arising from a conviction. Having a criminal conviction on your record may have detrimental consequences on your life. For instance, when you are seeking employment, potential employers may look into your criminal history. You would want to present yourself as a person of integrity who would become a desirable employee. A criminal conviction record may prevent you from doing this and cost you the job you desire. However, with expungement, you may be able to get rid of an adverse criminal conviction on your record. An expungement may also help you secure or maintain California professional licenses. An expungement may also help you gain membership in professional organizations. An expungement enables you to get a fresh start even if you had committed criminal activities in the past.
You may be a candidate for expungement after committing either a misdemeanor or a felony offense. However, the law requires you to have completed either misdemeanor probation or felony probation and met all the conditions of probation. You should not currently be facing charges for a criminal offense. You should also not be serving probation for a criminal offense or undergoing a sentence for a criminal offense. Before you apply for expungement under Penal Code 1203.4 PC, you must have completed the entire probation. You may also be eligible if you have obtained an early termination of probation.
Under California law, you complete probation successfully if you meet all the requirements for parole. This includes paying restitution and all the necessary fines. It also entails completing all the assigned community service work and counseling programs. You must have honored all the required court appearances through your attorney or in person. It must be evident that while on probation, you did not commit any additional or new crimes.
You might not qualify for expungement if you faced a state prison sentence at the time of judgment or after violating the conditions of probation. However, if you served your sentence in county jail after realignment, you may qualify for expungement even if you served your sentence in state prison.
Ineligibility for Expungement
Other than having served your sentence in state prison, some additional factors may render you ineligible for expungement under California law. For instance, you are not eligible for expungement if you commit sodomy with a child. It is a crime to commit sodomy with a child, as outlined under PC 286 (c).
You are also not eligible for expungement if you commit lewd acts with a child, according to PC 288. Committing the crime of oral copulation with a child under PC 288 a (c) renders you ineligible for expungement under California law. If you commit an offense under PC 261.5 (d) California's statutory rape, you are not eligible for expungement. The California law bans sexual intercourse between people at the age of 21 years and older and people below the age of 16 years. Therefore, if you engage in sexual intercourse with people below the age of 21 years, you are not eligible for restitution.
Failing to Complete Probation Successfully
One of the qualifying factors for expungement is the successful completion of probation. What if you fail to complete probation successfully? The California law requires all expungement applicants to have completed probation and honored all the terms of probation. However, if you have received a probation violation, not all hope is lost, and you should not be discouraged. A criminal defense attorney can help you apply for expungement. The court will hold a special hearing and determine whether you are an eligible applicant for expungement. If the outcome of the special hearing is positive, you are still a good candidate for expungement despite having violated the terms of probation.
The court may also use its discretion to determine whether to dismiss a conviction or not. When you commit a probation violation, the court has the option of giving or denying a petition for expungement under PC 1203.4. The jury may consider several factors when deciding whether to grant the petition or not. The jury will focus on your overall performance while on probation. He/she will also consider the seriousness of the underlying criminal conviction. The judge will also place great emphasis on your criminal history. Any other additional evidence showing whether you deserve the expungement will also count in court.
The court may decide whether you deserve the relief based on several factors. The factors include your chances of getting suitable employment. The court may also consider the support of your family and your strong community ties.
You may still expunge a criminal conviction even after serving your sentence in state prison. You are eligible for expungement if you would have served jail time had you committed the crime after the 2011 voter's initiative Proposition 47. The California PC 1203.42 outlines this exception. The expungement under 1203.42 is not automatic, but the court may grant it at its discretion. If the judge feels or believes that giving relief would be in line with the interests of justice, he may grant you relief. However, you have to meet some conditions before you get relief under PC 1203.4PC. Other than the previous crime being one that is currently punishable through jail time, two years must have elapsed since you completed your sentence.
To be eligible for expungement, you must not be under supervised release for a crime. You must not be currently serving a sentence for any crime. You must also not be on probation for any wrongdoing, and you must not be facing charges for the commission of any crime. If you meet the outlined requirements, the court may expunge your conviction even after having served a sentence in state prison.
For you to get an expungement under PC 1203.4, you have to file a petition in court. You may choose to file the petition in person or through your attorney. A probation officer may also file a petition in writing on your behalf. Upon filing a petition, the court may take two actions. The court may allow you to withdraw your plea of guilty or no contest and, instead, enter a plea of not guilty. If you had faced the prior conviction after filing a plea of not guilty, the court might decide to set aside your verdict of guilty.
Either way, the court will eventually dismiss the accusations against you. You will then get a release from all disabilities and penalties resulting from the previous criminal conviction the same you would get an expungement under PC 1203.4.
The Expungement Process in California
You have to follow several steps before the court grants you an expungement under PC 1203.4. Although it is not mandatory, it is advisable to seek the counsel of an experienced criminal defense attorney to guide you through the process. The attorney handling your case may follow several steps. The attorney will start by thoroughly analyzing your case to determine whether you are eligible for an expungement. The attorney will also perform legal research on the current and relevant law. The attorney is also responsible for filing the necessary paperwork within the set time restrictions. Your attorney will also attend the expungement hearing in the designated court of law.
It is important to note that filing the paperwork on time is very important. The California law requires you to provide the prosecutor with a minimum of 15 days' notice before the hearing. This will give the prosecutor ample time to review the case. If the prosecutor feels that you do not deserve an expungement, he will have sufficient time to object.
Benefits of Obtaining an Expungement
Several benefits come with obtaining an expungement under California law. For instance, no employer can discriminate against you based on expunged convictions. Therefore, you will not miss employment opportunities due to your criminal past. It will be easy for you to gain a state professional license after expungement. Your expunged convictions cannot lead to the impeachment of your credulity as a witness in a California court. An expungement also helps you to evade negative immigration consequences like deportation.
An expungement has become more significant and valuable in recent years. In the past, it was hard for other people or establishments to discover your criminal history because this information was only available to law enforcement. However, many information companies started indexing court records on criminal convictions into numerous databases. It is easy to search for a person's criminal history using his/her dates of birth and name. This dissemination of information allows employers, professional organizations, and licensing bodies to carry out background checks to unearth prior criminal activities of defendants. However, after an expungement, you cannot be a victim of your criminal past. Even if an employer finds out about your criminal history, he/she cannot victimize you as long as expungement is in place. As long as the court has expunged your conviction, the employer cannot deny you employment based on your past.
Limitations of an Expungement
Despite the several benefits of expungement, it does have some limitations. It, therefore, cannot be relied on in certain instances. For instance, in the case of a license suspension or revocation by the Department of Motor Vehicle (DMV), an expungement cannot help overturn the decision of the DMV. Therefore, an expungement cannot lead to the reinstatement of your driver's license unless you comply with all the conditions set by the DMV. If the court has withdrawn your gun rights under PC 29800, an expungement cannot help to reinstate your gun's rights. If you commit a crime that requires you to register as a California sex offender, you will still have to register as a sex offender even after you apply for an expungement. An expungement will not prevent you from registering as a sex offender under PC 290.
It is important to note that expunged convictions will still count as priorable offenses for future sentencing. For instance, if the courts expunge your DUI conviction, the sentence will still qualify as a prior offense if the police later arrest you for DUI.
If an expunged conviction would have counted as a strike on your record according to the California Three Strikes Law, expungement cannot erase it. The crime will remain to be a strike on your record even after the expungement.
For you to get the relief that an expungement cannot offer you, you would have to use alternative avenues for seeking post-conviction relief. You may find relief through a California Certificate of Rehabilitation. You may also seek relief through a California Governor's Pardon.
When to Apply for Expungement
If you are eligible for expungement under PC 1203.42, you may apply for expungement upon the completion of your probation. You may also apply for expungement after the court grants an early termination of your probation. If you have served a sentence in a California state prison, you may only apply for expungement if a minimum of two years has passed after the completion of your previous sentence.
You may be wondering whether it is possible to apply for early termination of probation and an expungement at the same time. Your attorney may help you to package several motions into one and make several requests in a single hearing. During the proceeding, the attorney may request the court to give you an early termination of probation. As long as you comply with the requirements of probation, the court has the option of giving you an early termination of probation. The court also has the option of reducing your felony charges into misdemeanor charges. This reduction may apply in a case where your offense is a wobbler, and the prosecutor has the liberty of charging the offense as a felony or a misdemeanor. The attorney may also request the court to expunge your conviction in the same hearing.
Expungement and Sealing/Destroying of Records
Many people who seek an expungement also request for sealing and destruction of criminal records. Sealing and destruction may apply to juvenile and adult criminal records. The process of sealing and destroying your arrest records is distinct from the process of expungement of criminal records. You may be eligible for sealing and destruction of your criminal records if it is evident that the prosecutor did not file charges against you even after your arrest. If the court dismissed your court or if the jury acquitted you during a jury trial, you may be eligible for sealing and destroying your records.
You may also be eligible for sealing and destruction of records if the court dismissed or overturned your conviction during an appeal. You may also be eligible upon completing a program of diversion, including deferred entry of judgment under PC 1000 or drug diversion under Prop 36.
A sealing or destruction of your record may allow you to assert that you have never faced an arrest for a crime. This is possible because before approving the sealing or destruction of your records, the judge has to declare that you are factually innocent.
In the case of sealing or destruction of a juvenile person's records, the same benefits apply as in the case of adult records. You may seal your juvenile record even if you are currently an adult. You may also seal the records if there was the termination of the juvenile court's jurisdiction a minimum of five years ago. You may also be eligible for sealing of juvenile records if, as an adult, you have not faced a conviction for a crime of moral turpitude. A crime of moral turpitude refers to a crime that involves immoral behavior or dishonesty. For you to qualify for the sealing of juvenile records, there should be no pending civil litigation based on your juvenile offense/incident. A judge gives /grants a motion to destroy or seal your juvenile arrest record for three years, and after that, the destruction occurs.
The Cost of Filing for Expungement
The Filing fee for California expungement will vary depending on the county you file the petition. The filing fee will also depend on whether you have a conviction for misdemeanor or felony. For instance, in San Diego, you would have to pay a cost of $60 while filing an expungement petition for a misdemeanor offense. You would also have to pay $120 while filing an expungement petition for a felony offense. If you cannot pay the expungement petition fee, you do not have to worry. All counties have in place a mode of assisting people who cannot raise the costs.
Answering No to Having a Criminal Record
After the expungement of your criminal history, you may answer no if someone asks you if you have a criminal history. After an expungement of your conviction by the court, you will no longer be under your past convictions. In some instances, you may still answer yes to having a criminal record. If you are applying to run a public office or become a peace officer, past convictions will matter even after expungement. Past convictions will also matter if you are applying for employment at the California Lottery Commission. If you are applying for a state license, your past convictions will count even after expungement.
How will you know that the court or the judge has expunged your criminal conviction? Your attorney may provide you with a signed order indicated the approval by a California Court Judge dismissing your case and setting aside the conviction.
In most cases, the expungement of your criminal record will help you obtain a state license. However, if an expungement is not adequate, you may acquire a certificate of Rehabilitation. A certificate of Rehabilitation outlines that a person with a criminal past has faced Rehabilitation. Depending on the specific offense, you have to wait between seven and ten years after your release from custody to acquire a certificate Rehabilitation. The certificate offers the defendant a wide range of benefits. For instance, the certificate becomes an automatic application for a Governor's pardon. If you hold a certificate of Rehabilitation, no one can deny you a state license if there no other hindrance. If you hold a certificate of Rehabilitation, it will act as an assurance to potential employers that you are past your criminal convictions and that you are ready to make a fresh start.
If you are seeking an ultimate relief from the disabilities and penalties associated with a criminal conviction, you may seek a governor's pardon. For you to apply for a governor's pardon, you have to wait for ten years after your discharge from parole or probation. Alternatively, you may obtain a finding of factual innocence. However, if you receive a certificate of Rehabilitation, you may be eligible to apply for a governor's pardon within seven years after your release from custody. Usually, a certificate of Rehabilitation serves as an automatic application for the governor's pardon.
Contact San Diego Criminal Lawyer Near Me
A prior criminal conviction may affect many areas of your life. It may hinder you from getting your dream job and deny your state licensing. A prior criminal conviction may also have adverse immigration consequences. San Diego Criminal Attorney can help you file a petition for expungement of a prior criminal conviction. Contact us at 619-880-5474 and speak to one of our attorneys today.