Expungement of Criminal Records in California

                                                                 

Up until recently, a person’s criminal history was unlikely to be discovered by anyone but law enforcement. Although criminal records were always public information, rarely would a potential employer sift through millions of court records to see whether a particular job applicant showed up.

Then information companies began indexing criminal court records into vast national databases that could be searched by name and date of birth. This new technology allows potential employers, licensing agencies and professional organizations to conduct a background check of your criminal record in moments.

But just as it’s easy for employers to do background checks, so too it’s relatively easy to expunge your California criminal records. As we discuss below, once a felony or misdemeanor conviction is expunged, a prospective employer is barred from using it against you in hiring decisions…or even asking you about it in the interview, for that matter.

In this article, I address the following:

1. California Expungement Law

1.1. Who is eligible to get a California expungement?

1.2. Who is NOT eligible to get a California expungement?

1.3. What if I violated (or didn’t satisfy) my probation?

2. An Overview of the Expungement Process

2.1. What an expungement can do for you

2.2. What an expungement will NOT do for you

2.3. When can I apply for an expungement?

2.4 . Sealing and destroying records

3. Frequently Asked Questions about Expungements.

If, after reading this article, you would like more information about criminal record expungements in California, we invite you to contact us.

1. An Explanation of California Expungement Law

California Penal Code 1203.4 PC provides that once an individual’s criminal record is expunged, the person is released from “all penalties and disabilities” arising out of the conviction.

This is especially important because in today’s economy. where finding a job is tougher than ever. you want to do everything in your power to make yourself the most desirable candidate. Clearly, this includes being able to state that you have a clean criminal record.”

Expungements are also beneficial for securing or maintaining California professional licenses and for joining many professional organizations. This relief offers you a “fresh start” from an otherwise questionable past.

1.1. Who is eligible to get a California expungement?

As a basic rule, you’re entitled to expunge your criminal records in California if you were convicted of a misdemeanor or felony offense, and you

1. successfully completed probation, and
2. are not currently charged with a criminal offense, on probation for a criminal      offense or serving a sentence for a criminal offense.

You must have successfully completed your probation in its entirety (or obtained an early termination of probation, discussed below). If you got sent to California state prison–either at the time of judgment, or because of a probation violation–you do not qualify for an expungement.

“Successfully completing your probation” means that you

1. completed all the terms of your probation (that is, paid all fines and restitution,      completed any counseling programs, community service, etc.),
2. attended all required court appearances (either personally or through your      attorney), and
3. did not commit any new crimes while on probation.

1.2. Who is NOT eligible to get a California expungement?

As we stated, you cannot expunge a conviction if you were sent to state prison.

Beyond that, there are also certain criminal offenses in California that cannot be expunged. These include serious sex offenses committed against children, such as

• Penal Code 286(c) PC California’s law against sodomy with a child,
• Penal Code 288 PC California’s lewd acts with a child law,
• Penal Code 288a (c) PC California’s law against oral copulation with a child,      and
• Penal Code 261.5(d) PC California’s statutory rape law which prohibits sexual intercourse between persons who are 21 years and older with persons younger than 16.

1.3. What if I violated (or didn’t satisfy) my probation?

If you completed your probation without a violation, you are entitled to expunge your California criminal record.

But if you failed successfully to complete your probation, and you received a probation violation, all hope is not lost. The court will hold a special hearing to determine whether you are nonetheless a good candidate for expungement.

In the wake of a probation violation, the court has wide discretion as to whether to grant or deny the petition for expungement. Factors that the judge may consider include (but are not limited to):

• your overall performance while on probation,
• the seriousness of the underlying conviction,
• your criminal history, and
• any additional evidence you can provide to demonstrate why you are deserving      of this relief, such as
  • your opportunity to obtain a good job,
  • the fact that you support your family,
  • the fact that you have strong community ties, etc.

2. Overview of the Expungement Process

Before the court will grant a California expungement, there are several steps that you.with assistance of your attorney. must follow. These include

• analyzing the case to determine whether you are, in fact, eligible for this type of      relief,
• performing legal research as to the current and relevant law,
• filing the appropriate paperwork within the proper timeframes (for example, you      must provide the prosecutor with at least 15 days’ notice prior to your      expungement hearing so that he/she has an opportunity to review your case      and object if desired), and
• attending the expungement hearing in the designated court.

But even if you follow all of these steps.and the judge grants your expungement.there are still restrictions and limitations as to what an expungement will ultimately do for you.

2.1. What an expungement can do for you

There are numerous benefits to obtaining a California expungement. The most significant include (but are not limited to):

• helping you secure employment…Per California law, an employer may not
  1. discriminate against you for being involved in any arrest that didn’t result in a conviction,
  2. inquire  about the fact that you suffered an arrest that didn’t result in a       conviction, ordiscriminate  against you based on the fact that you have expunged convictions,
• helping you obtain a state professional license,
• preventing any expunged prior convictions from being used to impeach your credibility as a witness in court (unless you are the defendant being prosecuted in the subsequent case), and
• possibly helping you avoid certain immigration consequences such as      deportation.

2.2. What an expungement will NOT do for you

Unfortunately, there are also several limitations as to what an expungement can do. For example, an expungement will not

• overturn a driver’s license suspension or revocation,
• restore your California gun rights under Penal Code 12021 PC California’s felon with a firearm law, or
• end your duty to register as a California sex offender under Penal Code 290 PC.

In addition, expunged convictions may still be used as prior convictions to enhance sentencing (such as with multiple DUI convictions) and as “strikes” for purposes of California‘s three strikes law. These types of limitations are discussed in more detail under our article “What an Expungement will NOT do“.

However, even issues such as these can be resolved through alternative avenues of post-conviction relief such as a California Certificate of Rehabilitation or a California Governor’s Pardon.

2.3. When can I apply for an expungement?

If you meet the other eligibility requirements, you may petition the court to expunge your California criminal record as soon as you have completed probation, or as soon as an early termination of probation is granted.

Many times, your California criminal defense lawyer can expedite the expungement process by “packaging” a number of motions into one. The most common example of this includes asking the court to

• grant an early termination of probation (which the court has the option of granting as long as you are in compliance with the terms of your probation),
• reduce a felony to a misdemeanor (in cases where the felony offense is      classified as a “wobbler”, that is, a charge that the prosecutor could have filed as either a felony or a misdemeanor), and
• expunge your conviction

all in the same proceeding.

2.4 . Sealing and destroying records

Many people who contact us about expungements also wish to “seal and destroy” adult and juvenile criminal records. Sealing and destroying arrest records is a totally different process from expunging records of criminal convictions.

If you

1. were arrested, but the prosecutor never filed criminal charges,
2. had your case dismissed in court, OR
3. were acquitted by a jury following a jury trial,

you may be entitled to have your arrest records sealed and destroyed. This relief allows you to state in all honestly that you have never been arrested for a crime (since a judge must declare you factually innocent before he/she will grant this type of motion).

Sealing California juvenile court records provides you with the same benefits. You qualify for this relief if

1. you are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
2. as an adult, you have not been convicted of any crimes of moral turpitude (that      is, a crime involving dishonesty or immoral behavior),

AND

3. there is no pending civil litigation based on the juvenile incident.

Once the judge grants your motion to seal and destroy your records, the arrest record is ordered sealed for 3 years and destroyed thereafter.

3. Frequently Asked Questions about California Expungement Law

Q. How long will my criminal record stay on the books?

A. Criminal records are maintained indefinitely. Criminal records do not automatically go away after a certain amount of time. If the court doesn’t expunge or seal and destroy your records, they will always be a part of your criminal record.

 

Q. Who can access my criminal record?

A. Criminal records are “public records”, so anyone can access your record, unless the record is sealed. This includes (but is not limited to) potential employers and licensing agencies.

 

Q. What happens when I expunge my record?

A. In California, when you expunge your record, your plea of guilty or no-contest, or conviction after trial will be set aside by a judge. You will then enter a plea of “not guilty”, and the judge will then dismiss your case.

 

Q. How long does it take to expunge my record?

A. It depends on the county which you live in, but generally we can have the petition filed and heard within one to two months. In cases where clients are actively seeking employment, we can seek to expedite the process.

 

Q. How do I find out if I qualify to have my record expunged?

A. Generally, if you (1) committed a felony or misdemeanor and were not incarcerated in the California state prison, (2) fulfilled the terms of your probation, and (3) were not convicted of one of the specific crimes that are not eligible to receive a California expungement. But to make sure, call us for a FREE, CONFIDENTIAL consultation!

 

Q. What is “felony reduction”?

A. If you have a conviction for a “wobbler” (that is, a crime that can either be charged as a felony or misdemeanor), you can generally reduce the felony conviction to a misdemeanor.

 

Q. Will you reduce my felony to a misdemeanor prior to expunging the record?

A. Yes. If your conviction is for a wobbler, we will petition the court to have the felony reduced to a misdemeanor prior to having it expunged. We will also ask for an early termination of probation where appropriate.

 

Q. Does it cost more to have my felony reduced BEFORE expungement?

A. No. The price is the same, it just expedites the process.

 

Q. Do I have to appear in court?

A. Generally not. The California expungement process typically allows a lawyer to appear on your behalf through all stages of the proceedings.

 

Q. What is the filing fee for an expungement?

A. It varies, depending on (1) the county in which you reside, and (2) whether you were convicted of a misdemeanor or a felony.

For example, San Diego County charges a petition fee of $60 for a misdemeanor and $120 for a felony. All counties have some type of financial assistance available for those who are unable to pay.

 

Q. How will I know that my record was expunged?

A. We will provide you with a signed order by a California Superior Court Judge setting aside your conviction and dismissing your case.

 

Q. After my record is expunged, can I answer “No” if I’m asked whether I have a criminal record?

A. Yes.this is one of the benefits of obtaining a California expungement. If the court grants your expungement, you can legally answer “no” if you are asked whether you have a criminal record. There are, however, three exceptions:

1. if you plan to become a peace officer or run for public office,
2. if you want to work for the California Lottery commission, or
3. if you want to apply for state license.

 

Q. Will expunging my record help me find a better job?

A. Many times, yes. If the employer doesn’t run a background check, then they will probably never find out about the conviction (since you no longer have to disclose the conviction). And even if an employer does conduct a background check, the employer will see that the conviction was expunged which means you are now ready to make a “fresh start”.

 

Q. Will expunging my record help me obtain a state license?

A. Often times, yes. Many California state licensing authorities require that you expunge the record of your conviction prior to the issuance of the license. However, when an expungement is not enough, we may be able to help you obtain a “Certificate of Rehabilitation” which offers even more benefits.

 

Q. What is a “Certificate of Rehabilitation”?

A. A Certificate of Rehabilitation is a court order that states that you have been rehabilitated. Once a judge issues this certificate, it automatically becomes an application for a Governor’s Pardon (discussed below).

 

Q. How long do I have to wait before applying for a California Certificate of Rehabilitation?

A. Between seven (7) and ten (10) years after being released from custody, depending on the specific offense of which you were convicted.

 

Q. How long does the process of applying for a Certificate of Rehabilitation take?

A. The process can vary from county to county, but generally we can have the petition filed and heard within 120 days.

 

Q. Will I have to appear in court for a Certificate of Rehabilitation?

A. Generally, yes. Most judges want to see and examine the candidate before granting a Certificate of Rehabilitation. Of course, we will be there with you to present your case in the most favorable light to help persuade the judge to grant the Certificate.

 

Q. What are the benefits of a Certificate of Rehabilitation?

A. There are many benefits to a Certificate of Rehabilitation. First, it’s an automatic application for a Governor’s Pardon. Second, it means that you cannot be denied a state license without other cause. Third, it sends a message to prospective employers that you have overcome your criminal history and are prepared to make a fresh start. Finally. and along these same lines. employers (and prospective employers) are not allowed to discriminate against you for any arrests that didn’t result in conviction. Moreover, they aren’t even allowed to inquire about them.

 

Q. What is a Governor’s Pardon?

A. A Governor’s Pardon is the ultimate relief from the penalties and disabilities associated with a criminal conviction.

 

Q. How long do I have to wait before applying for a Governor’s Pardon?

A. At least ten (10) years after being discharged from probation or parole if you are applying directly to the governor, unless you first obtain a finding of factual innocence (discussed above under section 2. sealing and destroying records).

If, however, you receive a Certificate of Rehabilitation. which can be granted in as little as seven (7) years after your release from custody. the Certificate acts as an automatic application for this relief.

 

Q. What are my options for sealing and destroying my California arrest records?

A. There are a number of ways to seal records. The most common are: (1) sealing of juvenile records, (2) sealing of arrest records, and (3) sealing of records after plea withdrawal and case dismissal.

 

Q. How do I know if I qualify for sealing my juvenile court record?

A. In order to be eligible for sealing your juvenile record, you must meet two criteria. First, the juvenile court jurisdiction must have terminated at least five years ago. Second, you must not have suffered a conviction for a crime of moral turpitude (that is a dishonest or immoral crime) as an adult. However, even if you meet these criteria, there are certain serious crimes such as

• Penal Code 187 California’s murder law,
• Penal Code 211 California’s robbery law, and
• Penal Code 288 PC California’s child molestation law

that do not qualify for record sealing.

 

Q. How do I find out if I qualify to have my arrest record sealed and destroyed?

A. Generally, if

1. you are arrested and no accusatory pleading was filed,
2. the DA dismissed your case, or
3. you were found “not guilty” after a California jury trial,

you can petition the arresting agency or the court to seal the arrest record. If you prove that you were factually innocent of the charges, then the arrest record is ordered sealed for 3 years and destroyed thereafter.

 

Q. How long does the process of sealing juvenile records take?

A. It depends on the county in which the conviction took place, but generally the process is completed within 6 months.

 

Q. Do I have to appear in court for the sealing of my juvenile record?

A. Generally not. For the sealing of juvenile records, we can usually appear on your behalf through all stages of the proceedings.

 

Q. How long does the process of sealing my adult arrest record take?

A. It depends on the arresting agency and the county in which you were arrested, but generally the process is completed within 90 days.

 

Q. Do I have to appear in court for the sealing of my adult arrest record?

A. Depending on the court where the petition is filed, it may be necessary for you to appear in court with your attorney on the hearing date.

Q. I have a felony and can’t get a green card or citizenship. Can you help me?

A. Yes. We may be able to reduce your felony to misdemeanor, therefore making you eligible for permanent residency and ultimately U.S. citizenship. Alternatively, we could possibly have your conviction set aside completely.

Once we review the facts and circumstances of your case, we will research the most promising options to help avoid immigration issues such as deportation or removal.

 

Q. I am required to register as a sex offender pursuant to California Penal Code 290 PC. Can you help me obtain relief from my lifetime duty to register as a sex offender and get off Megan’s list?

A. Yes. Certificates of Rehabilitation and Governor’s Pardons provide this type of relief. However, there are certain exceptions that disqualify you from being able to discontinue registering as a sex offender, depending on the exact offense of which you were convicted.

Call us for help.

For questions about California’s expungement laws, or to discuss your case confidentially