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Expungement of criminal convictions is
available for both felony or misdemeanor
convictions. However, the type of relief
available varies, depending upon both the
criminal charges and the sentence received.
Misdemeanor convictions are expunged pursuant
to Penal Code Section 1203.4. In any misdemeanor
case, where probation is granted and
successfully completed, and where the
probationer is not currently facing charges, an expungement is available. For a detailed
discussion of expungement in misdemeanor cases,
click here. For a thorough discussion of the
difference between the Certificate of
Rehabilitation and the Direct Application for
Governor's Pardon, click here.
Felony Expungement
If probation is granted in a felony case,
Penal Code Section 1203.4 will control, just as
it does in a misdemeanor case.
A grant of probation can still involve jail
time, and, in the case of a felony conviction,
often does. A judge has the discretion to order
formal or informal (also called "summary")
probation, and impose various terms and
conditions, including up to one year in county
jail.
When the term of probation has expired
naturally, or been terminated early after a
motion by the defense, and if other requirements
are met, 1203.4 relief is available.
California Penal Code Section 1203.4
provides, in pertinent part, that:
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 he or she is not then serving a
sentence for any new offense, on probation for
any offense, or charged with the commission of
any offense, be permitted by the court to
withdraw his or her plea of guilty or plea of
nolo contendere and enter a plea of not guilty;
or, if he or she has 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, he or she shall thereafter be
released from all penalties and disabilities
resulting from the offense of which he or she
has been convicted.... The order shall state,
and the probationer shall be informed, that the
order does not relieve him or her 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.
Once the guilty plea or verdict has been set
aside, and a judgment of not guilty entered, a
judgment of not guilty is entered, and the
complaint of information is dismissed.
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Reducing "Wobbler" Offenses
Criminal cases fall into three categories:
felonies (cases where punishment can include
more than one year in state prison),
misdemeanors (where punishment can include up to
one year in county jail), or "wobblers" (cases
that can be punished either by state prison or
up to one year in county jail).
For purposes of expungement proceedings, if a
felony conviction is a "wobbler", a skilled
criminal lawyer will likely seek a reduction of
the offense to a misdemeanor pursuant to Penal
Code Section 17(b) before seeking an expungement
under Penal Code 1203.4.
Penal Code Section 17(b) states that, on the
grant of this relief, the crime is a misdemeanor
"for all purposes," but case law and other
statutes carve out many exceptions. The
conviction, for example, remains a prior strike
under California's "Three Strikes" law, because
it was not a misdemeanor reduction at the time
of the original sentencing. The person may still
be considered convicted of felony for purposes
of many gun laws.
It is far better for a defendant to seek
reduction from a felony to a misdemeanor, where
available, before seeking an expungement. It is
certainly better for a defendant to have a
dismissed misdemeanor on their record than a
dismissed felony. Note: where a crime can only
be punished by a term in state prison, this
reduction is not available.
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Felony Convictions with State Prison
Sentences
Felony convictions, where probation is not
granted, and a term in state prison is imposed,
presents an entirely different situation. In
those cases, the only relief available is a
Certificate of Rehabilitation and Pardon, or
Direct Application for Governor's Pardon. For a
thorough discussion of the difference between
the Certificate of Rehabilitation and the Direct
Application for Governor's Pardon,
CLICK HERE.
Expungement Professionals Can Help
If you or someone you care about has suffered
a conviction, whether a misdemeanor or a felony
conviction, a skilled expungement lawyer can be
of real help. A skilled expungement lawyer can
help clean up a person's criminal record, which
can lead to better jobs, better self-confidence,
and a better life.
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If you need immediate assistance please call Darren Kavinoky directly:
