Expungement, Charge Reduction and Record Sealing.

superman September 6, 2018 0

If you were convicted of an infraction, a misdemeanor, or a felony and were ordered to serve county jail time, probation, pay a court fine, or a combination; we can petition the court for a ‘dismissal’ of the conviction. The court may withdraw your conviction and the court record would be changed to show a dismissal per Penal Code Section §1203.4” rather than a conviction of the case in question.

California Labor Code Section §432.7 states that an employer cannot ask someone applying for a job for information about an arrest or detention that did not end in a conviction. Also, an employer cannot ask about a referral to or participation in any diversion program. An employer is prohibited from searching for any record of arrest (from any source) that did not end in a conviction. If this information comes to the employer’s attention anyway, the employer cannot use that record as a factor in hiring, promoting, or terminating that person. But, this same code section states that the employer may ask an employee or potential employee about an arrest which is pending.  A conviction, for purposes of this code section, includes pleas, verdicts, or findings of guilt.

Because, in general, people are protected from having to disclose to an employer or potential employer an arrest if it did not result in a conviction, this guide will focus on cases where one has been convicted and does not fall under the protection of this Labor Code section.

What will an expungement do?

Once all your convictions have been dismissed, this is what you can expect:

  • Applying for private employment: Under most circumstances, private employers cannot ask you about any convictions dismissed under Penal Code section §1203.4. So, when applying for a job in the private sector, you generally do not have to disclose a conviction if it was dismissed or expunged. But it is a good idea to read Penal Code section §1203.4, or California Code of Regulations section §7287.4(d), or talk to an employment law attorney if you have questions about your rights and obligations regarding past convictions when applying for a job.
  • Applying for government employment or a government license: If you are asked by government employers or on government licensing applications if you have ever been convicted of a crime, you MUST respond with “YES — CONVICTION DISMISSED.” In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards) will treat you the same as if you had never been convicted of any crime.
  • Improve Your Chances for Employment and even improve your credit score. Read More here:

What an expungement CANNOT do:

  1. Your dismissed convictions can still be used to increase your punishment in future criminal cases.
  2. Your prior convictions cannot be removed from your DMV record.
  3. Firearm restrictions are not effected by an expungement.

Early Termination of Probation

If the judge grants an early termination of probation, the court will often expunge the defendant’s criminal record.  Before terminating your probation early, the judge will want to ensure that:

  1. You have successfully completed the terms of your probation (such as fines, classes or restitution)
  2. There are valid circumstances that justify early termination of probation.
    1. Valid reasons may include (but are not limited to) the fact that your probation is keeping you from securing gainful employment, preventing you from advancing at work, or restricting necessary travel.

Penal Code §1203.3 PC gives the court the discretion to grant a request for early termination of probation at any time during the probation period. In practice, however, most judges want to see people complete at least 12 to 18 months of their probation before they will seriously consider the motion to terminate probation early.

Charge Reduction

Felonies reduced to misdemeanors: People with “wobbler” felony offenses (offenses that can be classified as a felony or misdemeanor) may have their offense reduced to or classified as a misdemeanor and thus may be eligible for one of the forms of relief. The law has canned many felony charges to misdemeanors. This includes marijuana charges and some theft charges.  This has provided relief to many who have been convicted felons for years; a review and petition and motion to the court can clear this mar on your record and your ability to succeed. Cal. Penal § 17(b)(3) (An offense is a misdemeanor for all purposes “[w]hen the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”).

Proposition 47: Substantially expanded the number of offenses that were eligible for dismissal or set-aside by reducing certain felonies to misdemeanors and limiting sentences that may be imposed. This authority was made retroactive permitting individuals previously convicted of felonies to return to court to have their convictions reduced to misdemeanors, and thereby to become eligible for dismissal or set-aside.

Marijuana convictions: Proposition 64 (“Adult Use of Marijuana Act”) legalized the possession of small amounts of marijuana (less than one ounce) for those 21 years of age and older, reduced criminal penalties for many remaining marijuana offenses, authorized dismissal and sealing for some offenses, and redesignation of others. Relief for marijuana convictions was effective in 2018, and in 2022 additional reforms to facilitate delivery of relief were enacted.

Formerly incarcerated firefighter: AB 2147 created a special avenue to relief for people who have served as a state or county incarcerated individual hand crew member and are released from custody. Cal. Penal Code § 1203.4b. If the person “adequately performed their duties without any conduct that warranted removal from the program,” they may petition the court, in the county where they were sentenced, for relief from all sentences they were serving at the time of their hand crew service. Certain offenses are excluded (murder, kidnapping, specified sex offenses, escape, and arson), the person must not be currently facing any charges. The court, “in its discretion and in the interest of justice” may set-aside the guilty verdict or allow the person to withdraw the plea, dismiss the charges. This releases the person from “all penalties and disabilities,” except as provided in Section 13555 of the Vehicle Code, with certain conditions: in a subsequent prosecution, the prior conviction is treated as if it was not dismissed. Further, the order does not relieve the defendant of the obligation to disclose the conviction in response to a question in certain licensure applications, does not permit firearm possession, and does not permit the holding of public office if the conviction would prohibit it. Id. To be eligible for this relief, the person is not required to have completed complete probation, parole, or supervised release. The court, in providing this relief, “shall” order early termination of probation, parole, or supervised release if the person has not violated any terms or conditions of supervision.

We have successfully filed petitions on the issues and assisted our clients in a brighter future. 

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