The Expungement Process

Reduction of Felony to Misdemeanor

One of the most important elements in clearing your criminal record is determining if the offense was a misdemeanor or felony. If it was a felony, you must first reduce it to a misdemeanor. Reduction to a misdemeanor under Penal Code sections 17(b)(1), (2), or (3) should usually be done in conjunction with the Expungement petition. It is clearly much better for a defendant to have a dismissed misdemeanor rather than a dismissed felony.

If the courts grant probation without the imposition of sentence, the court, on application, may later declare the case to be a misdemeanor. As such, this discretion applies only to “wobblers,” i.e., offenses chargeable as either felonies or misdemeanors.

California Penal Code 17(b) states that, on the grant of this relief, the crime is a misdemeanor “for all purposes.”

Dismissal After Probation (Pen C 1203.4)

Most defendants who have successfully completed probation can petition the court to set aside the jury verdict of guilty, or permit withdrawal of guilty or no contest pleas, order the no-guilty plea reinstated, and dismiss the accusation or information (criminal charges). The petition can also be filed before probation ends when the court determines it is in the interest of justice under California Penal Code section 1203.4. In addition, Expungement relief is not available to defendants who were convicted of most felony child molestation offenses, a few other sex offenses, a few traffic offenses, and infractions.

The true practical effect of an Expungement is that, by law, an employer cannot ask any applicant about any misdemeanor conviction dismissed under this section. In most other respects, the only certain effect is that it gives a defendant the right to state that there was a conviction, but that it was dismissed.

This relief does not permit a person to own, posses, or have in his or her custody or control any firearm capable of being concealed on the person nor does this relief prevent a person from being convicted as an ex-offender in possession of a gun under California Penal Code section 12021, which is not restricted to ex-felons. That code section also covers a wide variety of misdemeanors either temporarily or permanently and also covers some juvenile offenses.

Persons convicted of Vehicle Code 2800 or 2801, or certain parts of 2803, and persons convicted of any infraction are not eligible to apply for Expungement.

Dismissal After Misdemeanor Sentence When Probation Not Granted (Penal Code 1203.4a)

There are two ways to seek an Expungement. The first is after probation is terminated and the second is during probation.

Relief under Pen Code section 1203.4(a) is available to a person convicted of a misdemeanor and not granted probation. This may cover conditional sentences. A conditional sentence is defined as being “without the supervision of the probation officer”, while “probation” is defined as being “under the supervision of the probation officer”. Conditional sentences are also commonly called informal or summary probation and court probation.

Penal Code 1203.4(a) relief is similar to dismissal under Penal Code 1203.4. To be eligible , the misdemeanor defendant must have fully complied with and performed the sentence of the court, must not be serving a sentence, nor charged with a crime, and must have, since judgment “lived an honest and upright life,” obeying the laws. Such a person must be permitted to withdraw the plea of guilty or no contest case dismissed. The defendant is thereafter released from all penalties and disabilities resulting from the conviction, except as provided.

However, Penal Code section 1203.42, unlike Penal Code section 1203.4, does not overtly require the person to disclose the conviction in an application for a state license, public office, or to contract with the state lottery. Both the statute and case law are silent about whether the person should disclose the conviction in response to a private employer’s questions. Most private employers are prohibited from asking about misdemeanor convictions dismissed under Penal Code 1203.4, but the regulation does not mention Penal Code 1203.4(a). Relief under Penal Code section 1203.4(a) does not end the requirement to register as a convicted sex offender under Penal Code section 290.

Dismissal After Completion of Treatment for Nonviolent Drug Possession Offense

A defendant who was convicted of a nonviolent drug possession offense, who received probation under Penal Code section 1210.1(a), and who successfully completed drug treatment can petition for a dismissal under Penal Code 1210.1(d) If the court finds that the defendant successfully completed treatment, the court will dismiss the case. The arrest and conviction are then deemed not to have occurred, with the following exceptions: The defendant still cannot own or possess a firearm;, the Department of Justice must disclose the conviction in peace officer applications and law enforcement inquiries; and the defendant must disclose the conviction in applications for public office, for employment as a peace officer, for licensure by a state or local agency, for contracting with the State Lottery, and for jury service.