An expungement, outlined under the California Penal Code 1203.4, allows you to withdraw a guilty or no-contest plea, re-enter a not guilty plea, and seek dismissal of your criminal conviction. If your expungement petition is approved, you will be free from certain penalties and disabilities based on your criminal conviction. An expungement is a post-conviction relief offered under California law. A tainted criminal record can affect many areas of your life, making it challenging to secure employment or tenancy. If you have a misdemeanor or felony conviction and would like to explore the possibility of having your conviction dismissed through a petition, call attorney Ann Gottesman. She is ready to speak to you about your case and determine if you are eligible to file a Petition to Dismiss.

Eligibility For an Expungement

Whether you were convicted of a misdemeanor or felony offense, you can apply for a dismissal of your conviction provided you meet the following requirements:

  • You have completed either a misdemeanor or a felony probation
  • You are not facing accusations of another offense or serving a sentence or probation for another offense

You must have served the full probation or obtained an early probation termination before you apply for relief under PC 1203.4. Completing your probation successfully means that:

  • You have honored all the probation terms, including paying all fines and completing any classes or community service.
  • You should have attended all required court hearings, either in person or through your attorney so that you were not found in violation of probation.
  • You should not have committed additional offenses while serving probation.

Even if you don’t qualify for a “mandatory grant” due to having committed a technical violation of probation, or because of a more serious violation such as picking up a new criminal case while on probation, the law does allow the Judge discretion to still grant the dismissal “in the interest of justice”. It is therefore important to have a good attorney ready to present a mitigation packet or formal motion showing the Court why you deserve to have the petition granted despite the transgression(s).

You do not qualify for an expungement under PC 1203.4 if you served time in a state prison in California. You could have been sentenced to a state prison at the time of the judgment or for violating probation conditions. However, there is an exception under the realignment program. If you served jail time instead of imprisonment in a state prison and committed the crime after realignment, you can still qualify, as explained under PC 1203.42.

Ineligibility For a California Expungement (Petition to Dismiss pursuant to PC section 1203.4)

Convictions for certain felony offenses do not qualify for expungement, including severe sexual crimes against children. You would be ineligible for an expungement if you were convicted of violating any of the following offenses:

  • California statutes against sodomy with a child, as outlined under PC 286(c)
  • Lewd acts with a minor as outlined under PC 288
  • Oral copulation with a minor under California PC 287(c)
  • Statutory rape law under California PC 261.5(d). Under this law, it is unlawful for a perso

above 21 years to engage in sexual intercourse with a person below 16 years

Keep in mind that failure to pay restitution, cannot by itself be the reason a court denies a Petition to Dismiss. (See PC section 1203.42(c): “…an unpaid order of restitution or restitution fine shall not be grounds for denial of the petition for relief.”)

If You Violate Probation Terms

The law states that you must adhere to all the probation conditions to qualify for expungement. However, there is still a chance to have your expungement granted even if you have violated the probation terms. The court can decide whether to grant your petition by weighing mitigating and aggravating factors to determine if granting the dismissal is in the interest of justice. Some of the factors that the judge can consider when deciding whether to grant the expungement petition include the following:

  • Your general performance during the probation
  • The severity of the underlying criminal conviction
  • Evidence indicating that you put effort into recovery or and changed your life
  • Showing remorse
  • Your criminal history
  • The applicant family's support
  • Strong ties to the community
  • Whether employment opportunities hang in the balance of the Petition being granted or denied,
  • You should not be serving probation for any offense, under supervised release for a crime, serving a sentence for an offense, or facing charges for the commission of a crime.

Obtaining An Expungement Under PC 1203.4

The process of obtaining an expungement of your criminal conviction begins by filing a petition with the court. You can make this application through your attorney, in person, or through your probation officer. After you file the petition, a court date will be set. Your attorney can appear or you can appear by yourself or with your attorney. If granted, the court will allow you to withdraw your guilty or no contest plea and enter a not-guilty plea. Your conviction would be set aside and the conviction dismissed.

If the court approves your petition, the judge will dismiss the allegations against you. Afterward, you will be free from a lot of the penalties or disabilities resulting from the conviction. However, a dismissal under Penal Code section 1203.4 will not automatically restore gun rights and the case can still be used as a priorable offense. Also, Government employers can still inquire about dismissed cases and arrests. Non-government employers are not legally allowed to inquire about a dismissed case or arrest. An expungement will not erase your record either. Your Department of Justice fingerprint record will show the prior offense, arrest date and conviction date but there will also be a notation that the conviction was dismissed. 

If asked on a job application if you have ever been convicted of a crime and the employer is not a government entity specifically asking about arrests or dismissed cases, you can legally say that you have never been convicted of a crime.

The Process of Expunging a Criminal Record in California

You should follow the following steps to expunge a criminal record in California:

Contact An Attorney

Expunging a criminal record can be time-consuming, and involve paperwork, and at times a formal motion. There are many opportunities for making an error, which could lead to petition denial.

An experienced attorney who understands how to file an expungement petition can help you get it right the first time.

Fill in The Appropriate Forms

You can access the expungement application forms online or at the relevant courthouses. However, the process is easier when you have an attorney helping you because the attorney understands the forms applicable to each situation. For example, if you have just completed a misdemeanor probation, you can complete an application form to dismiss your criminal record under PC 1203.4. If you have not completed the probation, you must file a motion to terminate your probation first. When filing a motion to terminate probation early, the attorney can also ask the Judge to reduce a felony to a misdemeanor if the charge was a “wobbler”. A wobbler is a criminal charge that can be filed either as a misdemeanor or a felony.

You can only reduce a wobbler felony to a misdemeanor by requesting the court to consider reduction under PC 17(b)(3). If it is possible, it is always better to ask the court to reduce a felony conviction to a misdemeanor before dismissing the charge. 

You must complete a separate form for each conviction to be expunged. Your attorney will advise you whether you need to file a formal expungement petition. For the eligible cases, the dismissal wait time is as follows:

  • For a misdemeanor offense probation is usually 1 year from the date of conviction.
  • For a felony conviction, probation is usually 2 to 5 years from date of conviction.
  • For a misdemeanor conviction where the court did not grant you probation, you must wait for at least 1 year after your case ends.

If you were never convicted to begin with, you can file a Petition to Seal Your Arrest under Penal Code section 851.91

  • For a felony crime with no charges brought, you must wait for three years after your arrest before you can request to seal the arrest.
  • If a felony charge is file but then dismissed, you can seek the grant of a Petition to Dismiss under PC section 1203.4 immediately after the dismissal.
  • For a felony conviction where the court grants you probation, you can apply for a Petition to Dismiss after completing probation. However, the felony conviction cannot be for one of the crimes prohibited for relief in the statute.

Filing The Expungement Petition

After you fill out the appropriate forms, you must file these forms with the court where your case was heard. Usually, the court responds within 30-60 days of filing the petition. Every court has distinct policies and procedures but typically a court date will be set and the Judge will review the case and Petition to determine if a grant is required, warranted in the interest of justice, or if the Petition should be denied. Sometimes, the expungement application forms need to include a signed declaration in order to meet the “in the interest of justice” requirement.

Filing the paperwork on time is crucial. For example, you must notify the prosecutor at least 15 days before the hearing. This allows the prosecutor to review your case and file an objection if needed.

The Expungement Hearing

Whether you have to appear for the expungement hearing in person depends on your case. If you are required to appear during the hearing, your attorney will keep you informed and help you to prepare for the hearing. Sometimes no appearance is required and the Judge will sign the order in chambers. The judge ultimately decides whether to grant the petition for an expungement. You are more likely to have the expungement request approved if:

  • You completed all probation requirements on time,
  • Did not violate probation,
  • And did not get arrested or charged with any new crime.

If The Petition Is Denied, Refile It

If the judge denies your request for dismissal under Penal Code section 1203.4, you can file another petition in the future. When to refile the Petition depends on the reason for the denial. If the Petition could only be granted in the interest of justice, then adding information to the petition that would show why the interest of justice is served would be beneficial. Waiting a few months or so may help as well, especially if the judge is wanting to see a period of time with no further arrests. Keep in mind however, that many expungement petitions filed under PC section 1203.4 must be granted and there is no need to show it is in the interest of justice! If the judge approves your expungement petition, the conviction will no longer be visible to the public and your Department of Justice record will be updated to show the conviction was dismissed. For non-government employers you do not need to report the conviction once it is dismissed. However, there are some exceptions where you must reveal the conviction:

  • When applying for a state license if asked
  • Running in a public election
  • Applying for a job with the Lottery Commission in California or any other governmental job if asked

The Benefits Of Obtaining An Expungement

An expungement of a criminal conviction offers several benefits, including the following:

  • An employer cannot discriminate against you when applying for a job based on your expunged conviction.
  • It is easier to acquire a professional license.
  • It is usually easier to get a job after your criminal conviction has been dismissed or your arrest sealed.
  • An expungement can also lead to the removal of travel restrictions.

The Limitations of an Expungement

Here is what an expungement cannot do:

  • Overturn the suspension or revocation of your driver's license
  • Restore your suspended gun rights under PC 29800
  • Remove your requirement to register as a sex offender
  • Remove your prior DUI conviction as a priorable case

An expunged conviction can still be used as a prior conviction for sentence enhancement. For example, if you expunge a DUI conviction but you commit another DUI offense within ten years of the prior DUI arrest, the expunged conviction will still count as a prior conviction. If an expunged conviction counts as a strike on your criminal record, it will remain a strike, even after expungement.

Other than seeking an expungement of your criminal record, you can restore your rights through:

  • Obtaining a rehabilitation certificate
  • Seeking a Governor's pardon

When You Can Apply for Expungement Under PC 1203.4

If you qualify, you can file an expungement petition on or after:

  • Completing probation
  • After an early probation termination

Expungement Versus Sealing/Destroying A Criminal Record

Sealing/destroying a criminal record is different from expunging a criminal record under PC 1203.4. You can have your records sealed or destroyed if:

  • You faced an arrest, but no criminal charges were filed against you.
  • The judge dismissed your case.
  • The jury acquitted you through a jury trial.
  • Your criminal conviction was overturned or dismissed through appeal.
  • You completed a diversion program, such as a drug diversion program under Prop 36 or a deferred entry of judgment under PC 1000.

Find An Experienced Criminal Attorney Near Me to Expunge my Conviction or Seal my Arrest

A criminal record can adversely affect many areas of your life. For example, obtaining a professional license, applying for tenancy, or securing employment can make it challenging. The good news is that you may not have to endure the weight of a criminal record forever. With the help of an attorney, you can file an expungement petition (dismissal of a conviction) or a petition to seal your criminal arrest record.

Call Attorney Ann Gottesman for a Free Consultation

For guidance and legal representation on how to dismiss a conviction or seal an arrest in Pasadena and Los Angeles area courts, contact attorney Ann Gottesman and The Law Office of Ann Gottesman. Call Ann at 626-710-4021 for a free consultation!