Expungements in California
– Penal Code §1203.4 & §1203.4(a) –
Expungement Laws in California - PC 1203.4 & 1203.4(a)
If you pled guilty or were found guilty after a trial, you may be eligible for an expungement. Expunging a conviction from your record allows you to legally say that you have never been convicted of a crime. This is particularly beneficial when applying for housing or employment.
For example, imagine you are applying for a new job and the application has a question regarding your criminal history. Ordinarily, you would have to disclose the fact that you were previously convicted of a crime.
This could lead employers to inquire about the facts underlying the charges, which may be embarrassing or unrepresentative of your character. On the other hand, if you have expunged the conviction from your record, then you are legally permitted to answer that you were never convicted.
Also consider, some employers require you to complete a fingerprint scan (sometimes called a LiveScan) so they can review your criminal record prior to starting your new position.
If you have expunged your record, then your prior conviction will appear as “dismissed” or “dismissed in the interest of justice.” But, without the benefits of an expungement, your conviction will appear on your background check as “guilty” or “convicted.”
What is the difference between an expungement and sealing my record?
What Is An Expungement?
In California, an expungement is a type of post-conviction relief that helps relieve people convicted of certain criminal offenses from the lifelong consequences of a criminal record. An expungement is authorized pursuant to penal code section 1203.4 and 1203.4(a).
The Judicial Council of California has made it easier than ever for defendants to request an expungement. All courts provide templates and forms that can be used to file your request for an expungement.
You can also download a copy of the petition for expungement by visiting the court’s website here.
You should complete as much information on the petition as possible. The more information the court has about your case, the easier it will be for the court to find your conviction.
At a minimum, your petition for expungement should include the original case number, the underlying charges, and the date of conviction. It should also include whether you’re requesting relief under PC §1203.4 or §1203.4(a).
Court form CR-180 is used to petition the court for an expungement.
After filing your petition with the court clerk’s office, the court will either (1) review your petition in chambers or (2) calendar your case for a hearing on the merits.
If the court decides to review your case in chambers, then you will not have to go to court for a hearing, the judge will review the documents and decide whether to grant your request. If your petition is scheduled for a hearing, it is your responsibility to attend the hearing and convince the judge why relief should be granted.
When the court grants an expungement, the defendant is permitted to withdraw their guilty plea and have the case dismissed.
Who Is Eligible For An Expungement?
Not everyone is eligible to have their conviction expunged. To be eligible for an expungement, you must have been convicted of either a misdemeanor or felony AND been granted probation.
You are not eligible for an expungement if any of the following are true:
You were sentenced to prison,
You are still on probation,
You are charged with a new criminal offense, or
You are currently serving a criminal sentence.
Additionally, there are certain crimes that are simply ineligible for expungement relief. These offenses include:
Penal Code §286(c),
Penal Code §288,
Penal Code §287(c) or of former §288a,
Penal Code §288.5,
Penal Code §289(j),
Penal Code §311.1, §311.2, §311.3, or §311.11, or
A felony conviction of §261.5(d).
Does A Judge Have To Grant An Expungement?
Even if you meet the qualifications above, not everyone is entitled to an expungement as a matter of right. Only persons who have “successfully completed the terms of probation” are entitled to have their conviction expunged as a matter of right.
Thus, if you completed probation without violating any of the terms, then you are legally entitled to expungement relief pursuant to PC 1203.4 & 1203.4(a). A judge would have to grant your request for an expungement.
Although you’re not entitled to relief if you violated your probation or failed to “successfully complete the terms of probation,” you may still be able to have your conviction expunged. A judge may grant your request for an expungement if (s)he finds that it is in “the interest of justice” to do so.
The court will almost certainly schedule a hearing in any case where the defendant failed to successfully complete probation. As discussed above, it is your job to convince the judge that your request for an expungement should be granted.
Some things a judge will consider in evaluating whether to grant an expungement in the interest of justice are:
The time that has elapsed between the conviction and the request for an expungement.
The defendant’s other criminal violations.
Why you are requesting relief (is it because you have a possible job offer).
The severity of the offense that was committed.
The severity of the probation violation.
As of January 1, 2023, a judge may NOT consider an unpaid order of restitution or restitution fine grounds for denial of the petition for relief.
How Much Does It Cost To Get An Expungement?
The court is permitted to require a filing fee to cover the costs of services rendered, whether or not an expungement is granted. These fees, however, cannot be more than $150.
For example, the Orange County Superior Court charges the maximum permissible filing fee for an expungement at $150.
The filing fee for an expungement must be paid to the clerk’s office at the time of submitting your petition. If you are unable to afford to pay the fee, then you may be entitled to a fee waiver.
What Is The Difference Between An Expungement & Sealing A Criminal Record?
Although an expungement is very beneficial in relieving the negative consequences of a conviction, it does not mean that all the records are erased or that the records cannot be discovered.
The records of a former conviction only become undiscoverable if the records are sealed. Sealing your record is an additional form of relief and is only available in limited circumstances.
That said, an expungement doesn’t just help clean your record, it can mean the difference between getting hired for the job you really want and being disqualified before even getting the chance to interview.
For more information regarding the expungement process, whether you are eligible, and the likelihood of success in petitioning for relief please call the number above.
Will An Expungement Restore Your Gun Rights In California?
No, an expungement pursuant to PC 1203.4 or 1203.4(a) does not restore your gun rights in California.
Under California law, any person convicted of a felony is prohibited from owning or possessing a firearm. There are also certain misdemeanor offenses, like criminal threats, that carry a 10-year firearm ban.
Despite getting these charges expunged from your record, you will still be unable to own or possess a firearm. However, a person may be able to restore their gun rights by requesting that the court reduce the felony to a misdemeanor pursuant to Penal Code 17(b).
An expungement will not restore a person's gun rights in California.
How to Get an Expungement in 5-Easy Steps
Every courthouse has there own practice and procedure when it comes to filing an expungement. However, there are some steps you should follow to ensure that your expungement is successful.
1. Get Your Case Details In Order
Before filing anything with the court, you’re going to want to make sure that you have all your case information. At a minimum, you’re going to need your case number, the year you were convicted, and the charges of which you were convicted.
You will also want to determine whether you were convicted of a misdemeanor or a felony and whether you successfully completed probation.
If you were convicted in Orange County, CA, you can find information about your case by visiting the court’s website here. To search for your case information by using your name, you will want to follow the instructions on the “case name search” page found under the “Online Services” menu option.
Alternatively, you can get information about your case by visiting the criminal court clerk’s office located within the courthouse.
2. Complete Your Petition
Now that you have all the information about your case and conviction, you can start completing your petition. You can download a copy of the petition to expunge your conviction directly from the court’s website.
You’ll want to use the information you collected in step 1 to complete the petition. Only one of the options on the petition will be applicable to your case. You will need to determine which option applies to your case and mark the selection on the petition.
Lastly, make three copies of your petition (and all additional documents you want to include). One is for you, one is for the court, and one is for the prosecuting agency.
You need to include all the information you want the court to consider in your petition. If you need to convince the judge to grant your expungement in the interest of justice, then you will want to include additional materials like character letters, a letter from your employer, or school transcripts to support your request.
3. Serve Your Petition
Before filing your expungement with the court, you’ll have to first provide a copy of the petition to the prosecuting agency. The prosecuting agency is the agency that was responsible for charging you with the crime.
In Orange County it will either be the Orange County District Attorney’s office or one of the City Attorney offices. You can serve the prosecuting attorney at the courthouse where you were convicted.
You should request that the prosecuting agency stamp your copy and the court’s copy. This will act as your proof that you provided a copy to the prosecuting agency and the date you served the petition.
4. File Your Petition
It’s finally time to file your expungement with the court! Take all the documents you served on the prosecuting agency and submit them to the Criminal Clerk’s Office at the courthouse where you were convicted.
When you file your petition, you should ask the criminal court clerk to stamp your copy of the petition. This is your proof of filing the petition with the court. Some courts require that you pay a filing fee at the time of filing your petition.
Upon filing your expungement, the criminal court clerk will either (1) tell you your petition will be handled in chambers or (2) schedule a hearing for your petition. If your petition is handled in chambers, then the judge will consider your request for an expungement and mail you the decision in the mail.
5. Go To Your Hearing
If your petition is scheduled for a hearing, you will have to attend the hearing and convince the judge that relief should be granted. Where you have successfully completed probation, the court is required to expunge your case.
On the other hand, if you failed to successfully complete probation, you will have to show the judge that granting your petition would be in the interest of justice.
Getting an expungement is a great way to help clean-up your past criminal record. An expungement can mean the difference between getting the job you always wanted and having the door shut in your face. If you have questions about your eligibility for an expungement or how an expungement can help you, contact a local Orange County expungement lawyer at JPLaw, P.C. to schedule your FREE consultation today.
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