Why You Will Need a Good San Diego Expungement Attorney

If you have been convicted of a crime, whether you pled guilty or went to trial and were found guilty, clearing up your record at a later date will be a main concern. You may wonder whether you will be able to find future employment, and if so, whether your potential new employer will have access to your past criminal record.

Anyone who was granted probation and has either successfully completed said probation or has good cause to terminate probation early, may be eligible to have his or her record cleared. The term “expungement” is somewhat of a misnomer, as the relief granted in California under Penal Code Section 1203.4 does not actually seal or “expunge” your record. What it does do, in effect, is to dismiss the offense. To be eligible, one must not currently be on probation or parole, nor be serving a sentence for any other offense anywhere. There are also certain convictions in which a person will not be eligible for expungement relief, such as Penal Code Sections 286(c), 288, 288a(c), 288.5, 289(j), any felony conviction of Penal Code Section 261.5(d), Vehicle Code Sections 2800, 2801, 2803, and any infraction.

California Penal Code Section 1203.4

(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the

verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon.  The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing.  However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.

Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021.

Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.

This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.

(b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.

(c) (1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.

(2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant.

(d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.

(e) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.

It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.

(f) If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.

(g) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.

Benefits

The benefit of expunging one’s record is that it will result in a court entry showing that the case has been dismissed. A plea of guilty or no contest is withdrawn and a plea of not guilty is entered. If there were a trial, the guilty verdict is set aside. In either case, the court is dismissing the conviction. More importantly, it will allow you to answer on most job application forms that you have not been convicted of a crime. The exception to this is if you are applying for a government job, or a job that requires a government-issued license, certificate or permit, or a job that involves a security clearance. As there will likely be a background investigation done for these types of jobs, it is best to disclose the conviction and then indicate that the conviction has been expunged.

If you were convicted of a felony, there is a separate proceeding in which the felony must first be reduced to a misdemeanor, then expunged. Also, for felonies in which probation was not granted and a term of custody in state prison was imposed, expungement is not the proper relief. In this case, one must obtain a Certificate of Rehabilitation and Pardon.

What Expungement Will Not Provide

1. Expungement relief will not actually remove the conviction from your California criminal history records or FBI records. It will show the conviction and then show that said conviction was later dismissed per Penal Code Section 1203.4

2. An expungement will not reinstate your right to own or possess firearms. However, having a reduction to a misdemeanor might accomplish this if the offense is not one of violence.

3. As indicated above, an expungement will not permit you to omit the conviction on applications for government-issued licenses.

4. An expunged conviction will not prevent the conviction from being used as a “prior” to increase punishment on subsequent convictions. In other words, there are certain crimes that if you are arrested for a similar crime in the future, the punishment can be enhanced. A classic example of this is for petty theft. Petty theft, or shoplifting, is by it’s nature, is a misdemeanor, meaning that the maximum penalty is a fine or custody of not more than one year in a local jail. If one receives a second petty theft conviction, it can be “upgraded” to a felony, commonly called “petty theft with a prior.” Thus, if the “prior” is expunged, this will not in and of itself stop the new crime from being charged as a felony.

5. Similarly, an expungement will not have any impact on the use of a DUI conviction as a prior offense. In other words, if a conviction for a DUI is expunged, and a person is arrested for a second DUI within 10 years, the second DUI will be prosecuted as a second offense with all the punishments and penalties of a second conviction, regardless of the expungement of the first DUI.

6. An expunged offense will not prevent the conviction from being used by INS for removal and/or exclusion purposes.

7. Expungement will not be applicable for certain sex offenses, and further, on most offenses will not delete the lifetime requirement for registration as a sex offender.

8. Finally, expungement will not necessarily seal or remove the court case file from public inspection, an individual that knows how or where to look may still be able to find the court case file.

Court Fees

Currently, the court fees for the Petition for Relief (expungement) are set at $120.00 for a felony case and $60.00 for a misdemeanor case.

Certificates of Rehabilitation and Pardons

A Certificate of Rehabilitation is basically a court order declaring that a person was originally convicted for a crime and is now rehabilitated. If a petition for a Certificate of Rehabilitation is granted, it is then sent to the Governor’s Office by the Superior Court and constitutes an application for a Pardon. Since a person that has served time in a state prison facility for a felony cannot have that conviction expunged, a Certificate of Rehabilitation is the vehicle in which one must seek relief. Also, certain sex offenses are not eligible for expungement relief and individuals seeking relief must seek a Certificate of Rehabilitation. This relief may also relieve certain sex offenders from the mandatory sex registration requirements of Penal Code Section 290.

Expungements can certainly help to remove hurdles to obtaining gainful employment, professional licenses and bring emotional relief. Employment can be the first step toward rebuilding a life and a career. It is essential that one who is interested in seeking expungement relief contacts a lawyer that understands the type of relief available and how to obtain it. Contact San Diego Criminal Defense Attorney Michael S. Berg today and schedule a free confidential consultation to discuss your case and the availability of obtaining post conviction relief.