Having a record of criminal conviction can negatively affect your ability to obtain employment, education, housing, and other benefits. Fortunately, under California law, you may be entitled to obtain relief from a conviction by filing a motion to dismiss your conviction in the interest of justice under Penal Code 1203.4.
The Oakland expungement lawyers at Lamano Law Office may be able to help you get a truly fresh start. Our all-women team of criminal defense lawyers provides a caring, compassionate approach to serving our clients. Our attorneys give honest, straightforward legal guidance to our clients about their rights and both the potential and likely outcomes of an attempt at securing a motion to dismiss. This will be helpful to you in presenting yourself in the most favorable light when filling out applications for employment, housing, and financial opportunities such as government assistance or private loans.
If you wish to avoid the lifelong negative consequences of a criminal conviction, a motion to dismiss in the interest of justice under California Penal Code 1203.4 could be an effective legal option. Contact Lamano Law Office today for a confidential case review to discuss your eligibility with a knowledgeable member of our legal team.
Who Is Eligible to Have a Conviction Expunged in California?
Under PC 1203.4, an individual filing a petition to dismiss their conviction in the interest of justice must meet certain eligibility requirements. You may be eligible for this process if you:
- Were charged with criminal wrongdoing under California law; federal criminal convictions cannot be expunged by a California court
- Have successfully completed any imposed term of probation, as well as fulfilled all other conditions of your sentence such as attending education classes or substance abuse treatment, completing community service, and paying any fines or restitution
- Have not served a term of incarceration in state prison on the conviction, or have served a state prison term that could have been served in county jail if the offense was committed after “realignment” was implemented per Proposition 47, the “Safe Neighborhoods and Schools Act”
- Have not committed any new crimes
- Are not currently charged with a criminal offense, on probation for a criminal offense, or serving a sentence for a criminal offense
An individual may apply for expungement as soon as the term of their probation expires. While an applicant typically cannot have violated the terms of their probation to be eligible for expungement, an applicant who received a probation violation can still apply to receive an expungement per the court’s discretion after it evaluates factors such as the applicant’s conduct on probation, the circumstances of the underlying offense, the applicant’s additional criminal history, and their need for expungement (such as for employment or housing opportunities). This is one of the many reasons why our firm focuses on making sure that our clients are viewed as “whole people” and that their stories are told in context.
What if I’m Still on Probation but Still Want to Clean Up My Record?
If you are still currently on probation but have served at least half of your probation period, you may ask the court to terminate your probation early under Penal Code 1203.3. So, if your probation period was 3 years, you will have to complete at least a year and a half of probation before you can take action. You will also need to show the court that being on probation is preventing you from being a productive member of society, such as gaining a promotion at work, petitioning a loved one to the U.S. for immigration purposes, getting a scholarship or government funding, and so forth.
What Crimes Can Be Expunged in California?
Various petty offenses and misdemeanors under California law can be expunged under a PC 1203.4 motion, including:
- DUI
- Petty theft
- Disturbing the peace
- Trespassing
- Purchase or possession of alcohol by a minor
- Failure to appear
- Shoplifting
- Disorderly conduct
- Violation of probation
- Misdemeanor assault and battery
- Public intoxication
- Violation of a protective order
- Reckless driving
- Prostitution or solicitation of prostitution
- Simple possession of drugs
Felony convictions charged under state law may also be eligible for expungement, provided that the criminal offender applying for relief didn’t serve time in state prison for the offense (or served time in state prison but would, under current law, be eligible to serve their sentence in jail, instead).
Who Is Not Eligible for Expungement in California?
Certain criminal offenses are not eligible for expungement under PC 1203.4. A conviction resulting in a sentence that includes a term of incarceration required to be served in state prison may not be expunged. In addition, certain sex crimes involving minors cannot be expunged.
What Does an Expungement Do?
During the expungement process, a court reopens a case that resulted in conviction. If the defendant was convicted on a plea of guilty or no contest, the court will allow the defendant to withdraw their original plea and enter a plea of not guilty. If the defendant received a guilty verdict, the court vacates this verdict. In either case, after vacating the defendant’s conviction, the court will order the criminal charge dismissed “in the interest of justice.”
An expungement, therefore, allows an individual to answer a job application that asks if you’ve ever been convicted of a crime with, “yes, but it was dismissed in the interest of justice,” except under very narrow circumstances. This can make it much easier for the individual to apply for employment, housing, admission to educational or vocational programs, and professional licenses.
Note that the expungement process does not seal the record of the criminal charge from public access. Your charge remains a part of the public record and can be accessed by anyone. However, someone accessing that record will see that the charge against you was dismissed in the interest of justice pursuant to PC 1203.4.
What Is Not Affected by an Expungement?
While expungement can afford significant relief from a criminal conviction, an expungement does not:
- Reverse a suspension or revocation of driving privileges with the Department of Motor Vehicles (DMV)
- Restore the right to purchase, own, and possess firearms
- Terminate sex offender registration requirements
- Prevent government agencies from seeing your record. This includes local police agencies, the CIA, and FBI
An expunged conviction may also be used to impeach an individual in a subsequent criminal prosecution against them. This means that if you get an offense expunged, that dismissed conviction could still be used to increase your punishment in the event that you are convicted of criminal wrongdoing in the future.
What Is the Difference Between Sealing an Arrest Record and Expungement?
An expungement does not eliminate a criminal record. After a conviction has been expunged, the record of the criminal charge remains publicly accessible, although the record will reflect that the charge was dismissed pursuant to PC 1203.4.
Because a record that you were arrested and charged with a crime could still have a negative impact on your ability to apply for employment or housing, you may wish to pursue the option of petitioning to have your arrest record sealed if you are eligible. If a court grants a request to seal arrest record, the record becomes unavailable for access by the public, although certain government agencies will still have access to it.
What Are Your Options If You Can’t Expunge Your Record?
If you have been convicted of an offense that isn’t eligible for expungement under California law, or if you served time in state prison as part of the sentence stemming from your conviction, you still may have other options for obtaining relief from the consequences of a record of criminal conviction. These options are discussed below.
A Certificate of Rehabilitation or California Governor’s Pardon
A certificate of rehabilitation refers to a court order which formally declares that someone who was convicted of a crime has been rehabilitated. Because a COR serves as a formal declaration of the court that a person is rehabilitated, it can help that person successfully apply for employment or housing opportunities, as employers and landlords may look favorably upon an applicant who has demonstrated rehabilitation from criminal activity. A COR could also relieve certain sex offenders from further registration requirements.
Finally, a COR also serves as an automatic application and recommendation for a pardon from the governor of California. A COR can be obtained after completing all aspects of a sentence, including a term of incarceration, parole, and community supervision. An applicant for pardon must have lived in California for at least the past five years without any further involvement with the criminal justice system.
Applicants must also observe a waiting period that lasts between seven and 10 years, depending on the offense. For certain offenses, an applicant may first need to have their conviction expunged before they can apply for a COR.
A governor’s pardon is a legal declaration that restores all rights of citizenship that may have been forfeited due to a criminal conviction. An applicant for a pardon must have been off probation or parole for at least 10 years, must have not committed any further criminal activity, and must prove that they consistently demonstrate exemplary, law-abiding behavior.
Commutation of a California Prison Sentence
Commutation of a prison sentence refers to relief that may be granted by the California governor to someone currently serving a prison sentence. Commutation for multiple felonies must also be approved by a majority vote of the justices of the California Supreme Court. Commutation can release an individual from the remainder of their sentence. Commutations are granted after considering various relevant factors, including:
- Whether commutation serves the interests of justice and public safety
- The age of the applicant at the time of the offense, the nature of the offense, and the sentence that was imposed
- The applicant’s conduct since the offense, including whether they have made efforts towards self-development or rehabilitation
- The applicant’s need for a commutation, such as health needs
- The applicant’s future plans after release
Commutation can also help a person begin their journey towards seeking a certificate of rehabilitation and/or a pardon.
How Our Oakland Expungement Attorneys Can Help You Start With a Clean Slate
Having experienced legal representation on your side when pursuing a PC 1203.4 motion can give you the best chance at securing an expungement of your conviction or convictions. Let the Oakland expungement attorneys of Lamano Law Office help you by taking care of all the details of preparing and pursuing your motion, including:
- Obtaining your criminal record
- Evaluating your eligibility for expungement
- Preparing your PC 1203.4 petition and filing it with the court, district attorney’s office, and probation department
- Advising you as to whether you will need to appear for the hearing on your petition
- Putting together a persuasive argument in favor of granting your petition, which may be especially important if the district attorney’s office or probation department has lodged an objection to the petition
- (If your petition is denied) Explaining the court’s reasoning for denying the petition and helping you to correct the identified deficiencies so that you can refile if the denial was not done with prejudice
If you could benefit from filing a PC 1203.4 motion to dismiss in the interest of justice in order to expunge an eligible conviction on your record, contact Lamano Law Office to schedule a confidential, no-risk consultation. We look forward to speaking with you.
