It is not pleasant to be sentenced to any criminal offense in California. That is why you should take advantage of the California expungement program once you get such an opportunity. Getting an expungement means that you will have your case dismissed by the court. There are a lot of considerations that you need to make to expunge your sentence successfully. We at the Orange County Criminal Lawyer can help you in the expungement process and ensure that you get it as soon as possible.
Legal Definition of Expungement in California
Under California Penal Code 1203.4, anyone who’s facing a conviction is eligible for release from any criminal penalties and disabilities that come along with the sentence. This means that your criminal records will be dismissed, and it will be as if you have never committed the crime. If you achieve expungement, it means that anyone conducting a background check on you cannot find any information about your conviction, unless you choose to disclose it to them. There are quite a couple of factors that are related to California’s expungement that you will learn in this article.
Eligibility for California Expungement
Under Penal Code 1203.4, a felony or misdemeanor offender is eligible for California expungement as long as the applicant:
- Has completed probation, whether it is a formal or summary probation and is not currently serving one
- Had a previous criminal offense at hand
- Is presently serving criminal offense probation and
- Is currently serving a sentence for a criminal offense
The applicant can also apply for expungement if he or she has acquired an early probation termination if the person has not yet completed the probation.
Some people do not qualify for an expungement as provided under Penal Code 1203.4. These people are as follows:
- Convicts for California’s law against sodomy with a kid
- Convicts for California’s law against lewd actions with a kid
- Convicts for California’s laws that prohibit oral copulation with a kid
- Anyone who is serving a sentence under California’s statutory rape law that is against sexual intercourse with anyone at the age of 21 years or older or younger than 16 years
The Advantage of California Expungement
There are a couple of benefits that result from California’s expungement. These benefits are as follows:
Ability to Apply for Job Positions
The ability to apply for job positions is probably the most considerable advantage that comes along with California's expungement. Nowadays, almost everyone can access your background through a simple search on the Federal Bureau of Investigation database. These records usually show that the applicants have prior arrests, convictions, and have gone through probation.
The good thing about expungement is that you can lawfully say no to any question about your previous convictions. Also, employers should not turn away from granting you a job opportunity when he or she learns about your records.
Ability to Acquire State Licenses
If you are pursuing any state license, you do not have to worry about disclosing your previous criminal records if you had them expunged. Most licensing agencies would look at your application favorably if you have completed the probation and expungement process.
Offers the Chance to Join Professional Organizations
If you are applying for a job in a professional organization, the organizations usually check on your criminal records to determine whether you are suitable for the position. However, if you have your criminal records dismissed, it will save you from the ill effects of stigma.
Guarantees Personal Satisfaction
Imagine how stressful it seems when you know that there are criminal records about you. However, it is quite a relief if you find out that you are acquitted from all your previous criminal records. This does not only bring redemption for the mistakes you have made but also brings closure about the frustrating point of your life.
Helps in Restoring Eligibility to Acquire Student Loans
A lot of students do not realize that having a conviction, such as a minor drug conviction can bar them from getting student loans. However, if they have such records expunged, they can redeem their eligibility for the student grant or loan.
Limitations of California Expungement
Although there are quite a couple of benefits that come along with California's expungement, there are possible limitations that come along as well. These limitations are discussed below:
Your Criminal Records Remain Accessible
It is vital to understand that your California criminal records are not erased once you get them expunged. Instead, the records are updated, and your criminal records show that:
- Your guilty plea has been dismissed, and you entered a not guilty plea position, or your verdict after the jury trial has been withdrawn
- You have completed probation
- Your case has been dismissed
If anyone does a background check on you, one can still take note of your criminal conviction but will show that they were successfully expunged. This can bring a lot of indifference when you have to seek a job position that is critical about moral uprightness.
You Still Have to Bring Your Criminal Records On-board
You need to disclose your criminal record if you are seeking a public office or getting a contract with the state lottery, even if you have your criminal records expunged. However, it does not mean that this can bar you from getting the license that you need.
Your Former Conviction can Still be Considered in a Subsequent Conviction
One of the major setbacks that comes along with expungement is the inability to prevent you from a subsequent conviction with a priorable case. This means that the court will still consider your previous conviction while determining the sentence of a subsequent crime. An excellent example of an offense that falls under this category is DUI. Anyone who had been convicted with a first- DUI and had it expunged will be sentenced with a second DUI in a subsequent offense, which has severe punishment than the former.
Your Rights to Own a Firearm is Denied
Under California Penal Code 29800, it is illegal to carry or own a firearm after getting a felony conviction and a couple of misdemeanor offenses. You still have no right to own or carry a gun even after expunging your convictions that fall under Penal Code 29800.
Sex Offenders are not Relieved from Previous Convictions
The fact that your record is expunged does not mean that you are relieved from your sex crimes. You still have to register as a sex offender as provided under California Penal Code 290. However, there are still other ways that one can be relieved from this kind of conviction, such as the governor’s pardon and certificate of rehabilitation.
You Can Still Be Deported Even After Expungement
Being granted an expungement in California does not mean that you can be relieved from your immigration consequences such as inadmissibility and deportation. The only thing that the immigration court would accept is a post-conviction relief that results from an invalid legal conviction.
However, some exceptions can relieve you from such consequences. For instance, if you reduce your felony charges to a misdemeanor, the conviction does not stand to be inadmissible.
Factors Affecting California Expungement
A couple of factors can affect your attempts to seek California's expungement. This means that your chances of getting your conviction dismissed are narrow unless you consider a few factors. Here are a few elements that can affect your California expungement.
In every probation, whether summary or formal, there are a couple of conditions that one has to consider. This includes paying all fines and restitution. You should also not be serving a sentence for a different offense or different probation altogether.
However, the fact that you have not completed your probation does not mean that you cannot apply for dismissal. The court can still guarantee your termination with a couple of conditions. In most cases, you will be required to complete the probation with the new terms that the court has imposed after the violation. Also, the court will check on the following to determine your dismissal.
- Your general performance while serving your probation
- The severity of your violation
- The severity of your original conviction
- Your criminal record
- Your evidence to the court on how well you deserve to be expunged based on your involvement with the community and unique details about your life
The court has a lot of discretion when it comes to determining whether one is eligible for an expungement or not. It can go ahead and expunge your case even if all criteria have not been met but feel that in the interest of justice, it is suitable to have the expungement.
However, it can still hold onto the decision of expungement if there is the possibility of risks once you have been expunged from your former convictions. For instance, if they feel that expunging your records would endanger the society, there are chances of denying your petition for expungement. Also, if one has completed probation for embezzlement and seeks expungement from the court to find a job from a financial institution, the court might deny the applications based on the circumstances of the previous crime.
Proposition 47 Realignment Program
Under the Proposition 47 Realignment Program, a non-violence convict can seek release from a county jail and serve a sentence outside prison under particular conditions. In that case, an eligible applicant can seek expungement from previous convictions except from the offenses provided under Penal Code 1203.4. However, the court has a lot of discretion in expunging the convictions in the interest of justice. Therefore, for one to qualify for expungement, the crime should be punishable in county jail and should meet the following criteria:
- Have at least two years since the defendant completed the sentence and
- Ensure that the defendant is not under supervision, serving a sentence, probation for any offense, and charged with a commission for a crime
California Expungement Application Process
Since now you are familiar with facts about expungement, you should now learn how the application process works. Below is a detailed procedure that you should consider:
Step 1: Find an Attorney
There are high chances of getting an expungement if you decide to involve an attorney. You should not just seek any attorney, but you should find one who is qualified and knowledgeable about California criminal law. Therefore, a thorough assessment of all potential candidates is necessary before you settle on a particular attorney.
Step 2: Find and Complete the Necessary Files
There are different types of files that one should complete while under probation. For instance, if you are seeking expungement for a misdemeanor charge, you should file a petition to dismiss the misdemeanor charge.
Other files that one should complete include:
- File a motion to terminate probation if you have completed the probation successfully
- File a petition of dismissal if your motion to terminate your probation has been denied
- File a form under Penal Code 17(b)(3), to have your felony charges reduced to a misdemeanor
It is necessary to learn how to file both copies for felony and misdemeanor expungement. For a felony charge expungement, you should consider whether your charges can be changed to a misdemeanor. This means that they have to be a wobbler. Once you have confirmed that the charges can be changed to a misdemeanor, you will have to submit the first file under Penal Code 17(b)(3) to reduce the felony charges to a misdemeanor. Please note that this applies to cases that are eligible for county jail sentences.
After the success of the first petition, you have to proceed into having the misdemeanor charges dismissed. These two procedures are quite straightforward and would take about ten to sixteen weeks to be completed.
The petition process is quite different from a person who is facing a conviction that resulted in a state prison sentence. Your probability of dismissal depends on whether you have stayed in the county for about five years. Also, you will need to file a different petition, which is the Certificate of Rehabilitation and Pardon, and prove to the court that you are making every effort to change your life.
Filing a dismissal for your misdemeanor charges is pretty straightforward. All you need to do is get a copy of your criminal record and submit your CR-180 form in a dismissal petition to your county offices.
You will have to submit the filled copy to the court and attach any documents that the court might request. You should consider using documents such as character reference and written proof showing that you have completed your community service to strengthen your petition.
Step 3: File for the Expungement
Once you are done with the filing process, the next step should be petitioning for expungement. It takes about four to five months to complete this process, and the case is usually heard in court. Your petition needs to be mailed or delivered to the court’s clerk.
Some fees apply in filing for the petition, which varies from one county to the other. You can find the costs needed for the petition on the court’s website. If you are unable to raise the required fees, you can find financial assistance from the county. Once everything is completed, the court will set a date for your hearing.
Step 4: Prepare for the Hearing
It is not mandatory to appear in court for an expungement hearing. However, your attorney should involve you in preparing for the trial. The court will present a couple of reasons to deny probation, and you need to be prepared to defend your petition. Therefore, you should gather any evidence related to your case and prepare a statement that can be useful in court.
Step 5: Follow through the Expungement Hearing
An expungement hearing is done before a judge without a jury. The hearing will take about ten minutes, which you are expected to behave appropriately. The court will determine whether to guarantee the petition based on:
- Your parole status
- Your charges
- Whether you can find a job or not
- Your level of community involvement and community services
- Whether you are facing additional convictions or not
Step 6: Wait for the Petition
Once you have completed the hearing, the court will wait for a while before responding to the petition. It can either accept or deny the petition based on their assessment. If they allow the request, the court will send a signed order which dismisses you from any convictions.
However, if they deny your petition, you have the opportunity to ask the reasons behind the denial and seek advice on what you should do to have it accepted. You will then have to wait for six months to refile the petition if you find that there are still chances of getting your case expunged. Otherwise, you should seek an alternative, as explained below.
Alternative to Having a Felony Expungement
If you are denied the petition for expungement and all conditions seem not to favor such a move, you can choose a couple of other alternatives as provided in the state. These alternatives are as follows:
Seal or Destroy Your Records
Sealing or destroying your records means that you will do away with your criminal records for good. There are a couple of factors related to this consideration, as described below. Once you have successfully sealed your criminal records, the court will offer a Certificate of Factual Innocence as your proof.
Obtain a Rehabilitation Certification
Another alternative for your expungement would be obtaining a certificate of rehabilitation. The certificate is guaranteed seven years after the completion of your probation or parole. The petition is done in the Superior court and does not provide a seal to your records. Therefore, you still have to answer “yes” to inquiries about your previous criminal records during a job or public office application.
Get a Direct Pardon From the Governor
A direct pardon from the governor is an alternative to a certificate of rehabilitation. It is meant for people who are no longer living within California. Applicants have to wait for ten years after parole or probation before applying for this direct pardon.
Difference Between Expungement and Destroying or Sealing Criminal Records
As learned from above, your criminal record is still accessible even after receiving expungement. However, the state can allow you to seal or destroy. This means that your criminal record will not show up when one is doing a background check on you. This condition falls under the Penal Code 851.87, which resulted from the California Senate Bill 393. There are a couple of terms that come along when trying to seal or destroy your California criminal records. These requirements are as follows:
- Have no criminal records ever filed against you
- Have a criminal charge filed against you, but had it dismissed by the court
- Your conviction was overturned or vacated once you made an appeal
- You managed to complete a pre-trial diversion pre-sentencing program.
There are a couple of exceptions that come along with the attempt to seal your criminal records. This includes any history of arrest or conviction for the following:
- Elder abuse
- Domestic violence
- Child abuse
If you have a history of a juvenile arrest, you need to consider a couple of factors to have your criminal records sealed. These aspects are as follows:
- You are now an adult, and you have about five years since your exemption from juvenile court
- You have no conviction related to crimes of moral turpitude as an adult
- You have no pending litigation depending on your juvenile incident
Once the court decides to seal your juvenile records, they will seal it for three years and destroy it afterward.
Find an Orange County Criminal Lawyer Near Me
There are lots of considerations that need to be made to get an expungement. That’s why it is crucial to involve a criminal attorney if you want everything to turn out as per your expectations. You should not just settle on any attorney but should seek someone who is competent enough and can have achieved continuously excellent results over time. We at the Orange County Criminal Lawyer are the best when it comes to seeking expungement for your convictions. If you are staying within Orange County, CA, contact us at 714-262-4833 and consult one of our attorneys.