Expungement of a Misdemeanor in California
What will an Expungement do to my record?
If you were convicted on a misdemeanor in California you can petition for a dismissal in which the court would allow you to withdraw your guilty or no contest (nolo contender) plea or verdict of guilty if you went to trial and then enter a not guilty plea. The court will then set aside and dismiss the conviction. Once the court sets aside and dismisses the conviction you will no longer considered convicted of that offense. Your criminal record will be changed to show a dismissal rather than a conviction. You can contact our office at 949-872-2700 to assist you with this process or visit our website at www.caduilaw.com.
What are the Benefits of an Expungement ?
Once your conviction or convictions have been dismissed you can expect:
(1) Applying for Private Employment – Under most circumstances, private employers cannot ask you about any convictions dismissed under California Penal Code §1203.4. So when applying for a job in the private sector, you generally do not have to disclose a conviction if it was dismissed or expunged.
(2) Applying for Government Employment or a Government License – For questions by government licensing applications so if you are asked if you have ever been convicted you must respond in the affirmative. In California, however, government employers and licensing agencies (except for police agencies and concessionaire licensing boards) will treat you the same as if you have never been convicted of any crime.
(3) Firearms – you will not be allowed to own or possess a firearm until you would otherwise be able to do so.
(4) Future Punishment (Multiple DUI’s) – your dismissed convictions can still be used to increase your punishment in any future criminal cases.
(5) Driving Privileges – your prior convictions can still affect your driving privileges.
(6) Sex Offenders – if you have been required to register as a sex offender as a result of a conviction, you have to make a different motion to the court in order to be relieved of this requirement. A dismissal will not relieve you of your duty to register as a sex offender. Your status as a registered sex offender will continue to be available to the public on the Internet under Megan’s Law.
(7) Public Office – if your conviction prohibited you from holding public office you still cannot hold public office after that conviction is dismissed.
(8) Rap Sheet – California and FBI criminal history records will still show the conviction and a dismissal “per California Penal Code §1203.4”.
Am I eligible for a dismissal?
You are eligible for dismissal of a conviction and the court will dismiss your conviction, if:
You received probation for that conviction and:
(1) You successfully completed probation or obtained early release from probation; and
(2) You have paid all the fines, restitution and reimbursements ordered by the court as part of your sentence; and
(3) You are not currently serving another sentence or on probation for another offense; and
(4) You are not currently charged with another offense.
You never received probation and:
(1) It has been at least one year since the date you were convicted; and
(2) You have complied fully with the sentence given by the court; and
(3) You are not currently serving another sentence; and
(4) You are not currently charged with another offense; and
(5) You have obeyed the law and lived an honest and upright life since the time of your conviction.
Still on Probation
If you were convicted of a misdemeanor and are still on probation you may be able to request early termination of probation and file a petition to have the conviction dismissed. Under California Penal Code §1203.3 you would file a petition to have the probation terminated early and then file a petition for expungement under California Penal Code §1203.4.
Finished Probation
In California, you are eligible to have your case expunged once you fulfill all the terms and conditions of your probation.
Never under Probation
If you were convicted of a misdemeanor and were never given any probation at all you can file a petition for expungement under California Penal Code §1203.4 (a).
What is the difference between an Expungement & a Dismissal?
The terms are used interchangeably in California regarding 1203.4 motions, however the word “expungement” is misleading by common definition. To “expunge” means to “to strike out, obliterate…efface completely, destroy, blot out, erase, wipe out, annihilate, annul, or put an end to”. In criminal law “expungement” means
“the eradication of a record of conviction or adjudication upon the fulfillment of prescribed conditions”. Practically speaking, the conviction is not “erased” from public view. Anyone who has access to public court websites can still view the case information. However, the disposition of the case will reflect that it was “dismissed”.
Misdemeanor Convictions not eligible for Expungement
The following offenses are not eligible for dismissal under California Penal Code §1203.4a:
(1)Any misdemeanor within the provisions of Vehicle Code § 42002.1 (failure to stop and submit to inspection of equipment for unsafe condition endangering a person)
(2) Any violation of California Penal Code §286(c) (Sodomy with kid under 14), 288 (lewd acts with a kid under 14), 288.5 (intercourse with a child under 14), 288a (c) (Oral copulation with a child under 14), or 289(j) (sexual penetration of a child under 14).
What forms are used to file an Expungement under California Penal Code §1203.4. (a) (1)?
Judicial Council of California CR-180 - Petition for Dismissal
http://www.courts.ca.gov/documents/cr180.pdf
Judicial Council of California CR-181 – Order for Dismissal
http://www.courts.ca.gov/documents/cr181.pdf
In Orange County:
Petition for Relief under Penal Code §1203.4, §1203.4a
http://occourts.org/forms/local/l1073.pdf
Order for Relief under Penal Code §1203.4, §1203.4a
http://occourts.org/forms/local/l1279.pdf
Instructions for completing the Petition for Dismissal (Expungement) Motion paperwork
Please note: If your case has been destroyed pursuant to California Government Code §68153, you must provide the court with either a copy of the probation order or the criminal history record from the California Department of Justice (RAP sheet).
(1) Complete the Petition for Relief under Penal Code §1203.4 & 1203.4a and Order for Relief in Orange County or Petition for Dismissal and Order for Dismissal in Los Angeles, Riverside, San Bernardino or San Diego Counties.
(2) Serve a copy of the expungement motion to prosecutor who prosecuted your case by mail or in person.
(3) If mailed, the person mailing must complete the Proof of Service. If delivered in person, the prosecutor may acknowledge its receipt by stamping the original petition to be delivered to the court.
(4) Return or mail the original expungement motion along with the proof of service to criminal department of the court in which your case was filed.
Pertinent Statues regarding Expungements of a Misdemeanor in California
(1) Still on Probation – use California Penal Code §12303.3
(2) Finished terms and conditions of Probation – use California Penal Code §1203.4
(3) Never on Probation – use California Penal Code §1203.4. (a) (1)
California Penal Code §12303.3
1203.3.(a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when
the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held. The court shall also have the authority at any time during the term of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 to revoke, modify, or change the conditions of the court’s order suspending the execution of the concluding portion of the supervised person’s term. (b) The exercise of the court’s authority in subdivision (a) to
revoke, modify, or change probation or mandatory supervision, or to terminate probation, is subject to the following: (1) Before any sentence or term or condition of probation or
condition of mandatory supervision is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter, except that, as to modifying or terminating a protective order in a case involving domestic violence, as defined in Section 6211 of the Family Code, the prosecuting attorney shall be given a five-day written notice and an opportunity to be heard.
(A) If the sentence or term or condition of probation or the term or any condition of mandatory supervision is modified pursuant to this section, the judge shall state the reasons for that modification on the record.
(B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor.
(2) No order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order.
(3) In all probation cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections.
(4) The court may modify the time and manner of the term of probation for purposes of measuring the timely payment of restitution obligations or the good conduct and reform of the defendant while on probation. The court shall not modify the dollar amount of the restitution obligations due to the good conduct and reform of the defendant, absent compelling and extraordinary reasons, nor shall the court limit the ability of payees to enforce the obligations in the manner of judgments in civil actions.
(5) Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation.
(6) The court may limit or terminate a protective order that is a condition of probation or mandatory supervision in a case involving domestic violence, as defined in Section 6211 of the Family Code. In determining whether to limit or terminate the protective order, the court shall consider if there has been any material change in circumstances since the crime for which the order was issued, and any issue that relates to whether there exists good cause for the change, including, but not limited to, consideration of all of the following:
(A) Whether the probationer or supervised person has accepted responsibility for the abusive behavior perpetrated against the victim.
(B) Whether the probationer or supervised person is currently attending and actively participating in counseling sessions.
(C) Whether the probationer or supervised person has completed parenting counseling, or attended alcoholics or narcotics counseling.
(D) Whether the probationer or supervised person has moved from the state, or is incarcerated.
(E) Whether the probationer or supervised person is still cohabiting, or intends to cohabit, with any subject of the order.
(F) Whether the defendant has performed well on probation or mandatory supervision, including consideration of any progress reports.
(G) Whether the victim desires the change, and if so, the victim’s reasons, whether the victim has consulted a victim advocate, and whether the victim has prepared a safety plan and has access to local resources.
(H) Whether the change will impact any children involved, including consideration of any child protective services information.
(I) Whether the ends of justice would be served by limiting or terminating the order.
(c) If a probationer is ordered to serve time in jail, and the probationer escapes while serving that time, the probation is revoked as a matter of law on the day of the escape.
(d) If probation is revoked pursuant to subdivision (c), upon taking the probationer into custody, the probationer shall be accorded a hearing or hearings consistent with the holding in the case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that hearing or hearings is not to revoke probation, as the revocation has occurred as a matter of law in accordance with subdivision (c), but rather to afford the defendant an opportunity to require the prosecution to establish that the alleged violation did in fact occur and to justify the revocation.
(e) This section does not apply to cases covered by Section 1203.2.
California Penal Code §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 he or she is 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 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, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her 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 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 Commission.
(2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her 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) 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 any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any 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 interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant.
(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 using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person's eligibility under this section. The court may order reimbursement in any case in which 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 provision of 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 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.
California Penal Code §1203.4a. (a)
Every defendant convicted of a misdemeanor and not granted probation, and every defendant convicted of an infraction shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and
performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime, and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or 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 accusatory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 12021.1 of this code or Section 13555 of the Vehicle Code.
(b) If a defendant does not satisfy all the requirements of subdivision (a), after a lapse of one year from the date of pronouncement of judgment, a court, in its discretion and in the
interests of justice, may grant the relief available pursuant to subdivision (a) to a defendant convicted of an infraction, or of a misdemeanor and not granted probation, or both, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense, and is not under charge of commission of any crime.
(c) (1) The defendant shall be informed of the provisions of this section, either orally or in writing, at the time he or she is sentenced. The defendant may make an application and change of plea in person or by attorney, or by the probation officer authorized in
writing, provided that, 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 relief had not been granted pursuant to this section.
(2) Dismissal of an accusatory pleading pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(3) Dismissal of an accusatory pleading 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.
(d) This section applies to any conviction specified in subdivision (a) or (b) that occurred before, as well as those occurring after, the effective date of this section, except that this
section does not apply to the following:
(1) A misdemeanor violation of subdivision (c) of Section 288.
(2) Any misdemeanor falling within the provisions of Section 42002.1 of the Vehicle Code.
(3) Any infraction falling within the provisions of Section 42001 of the Vehicle Code.
(e) A person who petitions for a dismissal of a charge under this section may be required to reimburse the county and the court for the cost of services rendered at a rate to be determined by the county board of supervisors for the county and by the court for the court, not to exceed sixty dollars ($60), and to reimburse any city for the cost of services rendered at a rate to be determined by the city council not to exceed sixty dollars ($60). Ability to make this reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person's eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the cost for services established pursuant to this subdivision.
(f) A petition for dismissal of an infraction pursuant to this section shall be by written declaration, except upon a showing of compelling need. Dismissal of an infraction shall not be granted under this section unless the prosecuting attorney has been given at
least 15 days' notice of the petition for dismissal. It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.
(g) Any determination of amount made by a court under this section shall be valid only if either (1) made under procedures adopted by the Judicial Council or (2) approved by the Judicial Council.
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