How Can a Criminal Defense Attorney Improve my Criminal Record?
California Penal Code § 1203.4 provides a process for those convicted of a crime to improve their criminal record. This relief is available regardless of whether the petitioner was granted probation.
An expungement is a dismissal of a criminal conviction. It does not seal your criminal record but dismisses your conviction. The conviction that is expunged or dismissed remains on your criminal record, however, a vary favorable entry is added and generally for those reviewing your criminal history the perception is that your case was dismissed or favorably concluded. Once your conviction is expunged or dismissed, you are released from all penalties and disabilities resulting from the offense but, as expected, there are some limitations to this release which is discussed below. Criminal history improvement attorneys in our Sonoma, Napa, Marin, Lake, Mendocino and Humboldt county offices can explain this process in more detail.
Expungement in a Criminal Case in Which Probation was Granted by the Court:
As soon as the convicted individual successfully completes probation or is granted an early termination by the court, he or she may petition the court to set aside the conviction. He/she will then “be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.” This is the case regardless of whether the individual entered a guilty or no contest plea or was convicted after entering a not guilty plea. In order to be eligible, at the time the person petitions for expungement, he or she must not be on probation for any other offense and must not be facing any new criminal charges. If the individual meets the qualifications for expungement, the court MUST grant the petition.
Expungement When the Court Did Not Grant Probation with the Conviction:
If someone was convicted of a misdemeanor and denied probation or was convicted of an infraction, he/she may still petition the court for an expungement. In some cases, a petitioner is entitled to an expungement, which is to say that the court must grant the petition. In other cases, the court has the discretion to grant the expungement but is not required to do so.
In order to be eligible for expungement when no probation has been granted, the petitioner must have satisfactorily completed all of the conditions imposed by the court at sentencing, must not be currently serving a sentence for any other offense or be facing prosecution for any new criminal charges and must have “lived an honest and upright life and … conformed to and obeyed the laws of the land” for a period of one year following the pronouncement of the sentence. If all of these conditions are satisfied, the court must grant the requested expungement. It is especially important in these circumstances to seek the help of a criminal defense attorney in Santa Rosa, Napa, San Rafael, Lakeport, Ukiah or Eureka office.
If the petitioner has satisfied the first two conditions but has not “lived an honest and upright life and … conformed to and obeyed the laws of the land,” he or she may still petition the court for an expungement, but the court is not required to grant the petition. The court will decide whether the expungement would serve the interest of justice.
Exceptions and Limitation to PC 1203.4 Expungement:
There are several exceptions and limitations to the relief available through expungement.
- While expungement releases the individual from the penalties and disabilities resulting from the conviction, it does not permit the individual to own firearms if the offense for which they were convicted imposed any firearm restriction.
- An expungement will not remove the requirement to register as a sex offender pursuant to Penal Code § 290 if the individual has been convicted of certain sex offenses. Release from sex offender registration following an expungement requires a Certificate of Rehabilitation.
- If the conviction would prevent the individual from holding a public office, expungement does not enable the individual to do so.
- In response to a direct question on an application for state licensure (i.e., the State Bar, a contractor's license, nursing license, etc.), employment as a public official, or a position as a contractor with the State Lottery Commission, the individual MUST disclose the conviction.
- If an individual is granted an expungement and later faces prosecution for any offense, the prosecution may allege the individual has suffered a prior conviction of the expunged criminal offense. As with any other prior conviction, the prosecution must plead and prove the validity of the prior conviction, and the defendant will have the opportunity to oppose the allegation. However, if the prosecution successfully proves the prior conviction, it "shall have the same effect as if probation had not been granted or the accusation or information dismissed."
- An expungement will not necessarily prevent the conviction from being used by the INS for removal or exclusion purposes.
There are several crimes for which the statute specifically states expungement is not available. They include:
- Vehicle Code Section 13555 (revocation or suspension of driving privileges);
- Vehicle Code Section 42002.1 (misdemeanor conviction of Vehicle Code § 2800, 2801, or 2803 involving failure to stop and submit to inspection of equipment or for an unsafe condition endangering a person);
- Penal Code Section 286 (sodomy);
- Penal Code Section 288 (lewd and lascivious act against a child under 14 years old);
- Penal Code Section 287, subdivision (c) (or former Penal Code Section 288a) (oral copulation with a person less than 14 years of age and more than 10 years younger than the defendant);
- Penal Code Section 288.5 (continuous sexual offense against a child under 14 years old);
- Penal Code section 298, subdivision (j) (sexual penetration of a child under 14 years old and more than 10 years younger than the defendant);
- Penal Code Section 311.1 (possession or distribution of child pornography);
- Penal Code 311.2 (possession or distribution of "obscene matter");
- Penal Code 311.3 (sexual exploitation of a child), or
- Penal Code 311.11 (possession of child pornography), or
- Felony conviction of Penal Code section 261.5, subdivision (d) (sexual intercourse with a person under age 16 and defendant is age 21 or older).
Despite the exclusions stated above, the Governor may grant a pardon to an individual who has been convicted of a violation of Penal Code Section 286 subdivision (c), Section 288, Section 287 subdivision (c) (or former Section 288a), Section 288.5, or Section 289 subdivision (j).
Reasons to Petition for Expungement:
There are a number of advantages to be gained by acquiring an expungement:
- Expungement will add an addition to your criminal record indicating that your case has been dismissed. The dismissal is the result of an order of the court that your lawyer will acquire from the same court in which the conviction occurred. As part of this process, you will be withdrawing your previously entered plea of ‘guilty' and entering a new and different plea of ‘not guilty.' The court will then dismiss and set aside the conviction. Remember that an expungement/ dismissal does not erase your criminal conviction but, rather changes it to reflect that the plea of guilty or no contest and the resulting of the findings of the court set aside and vacated, that a plea of not guilty is entered and the criminal complaint filed against you is dismissed. It will not seal or otherwise remove the criminal file from public inspection. Any company running a background check on you will see the conviction but will also see language indicating that the conviction was dismissed.
- The expungement or dismissal will prevent the conviction from being used against you for impeachment if you testify in someone else's case. The conviction can, however, still be used against you if you are accused of another crime (see discussion, above, in Exceptions and Limitations to Expungement).
The acquisition of a dismissal or expungement will allow you to answer ‘no' to questions on most job applications regarding whether or not you have been convicted of a crime (see discussion, above, in Exceptions and Limitations to Expungement). A potential employer cannot legally ask for information about an arrest that did not end in a conviction or involvement in a diversion program, and may not consider any criminal record that does not result in a conviction.
- If you are applying for employment and the employer does a background check that does not show the dismissal or expungement that you have acquired, don't hesitate to give the employer a copy of your Court stamped Order for Dismissal. Many times private local background check companies are aloofly inaccurate and don't have recent adjustments to a person's criminal record. Our criminal defense attorneys can help you acquire of your California criminal history and correct the record if the Department of Justice has not already done so.
- If, however, if you are applying for a government job or a job which requires a government-issued license, certificate or permit, or a job which involves a security clearance, the conviction will be discovered. In these cases, you should consider disclosing the conviction and expungement/dismissal once you have acquired it.
- If the conviction was for a felony, an expungement or dismissal is the first step in obtaining a Certificate of Rehabilitation and/or a Governor's Pardon.
Remember, Ronald Dinan and Associates, is a firm of experienced and aggressive criminal defense lawyers, who are experienced in improving clients' criminal history. If you need an expungement or dismissal of your criminal conviction, one of the best decisions you can make is to speak to an expungement attorney. Ronald Dinan & Associates serves people throughout Sonoma, Napa, Marin, Lake, Mendocino, and Humboldt counties. Our six Bay Area offices are centrally located in the cities in which the courthouses are located and we look forward to helping you.
To get immediate help with your criminal history improvement matter, we invite you to call us to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.
- Santa Rosa - 707-571-5550
- Napa - 707-252-0102
- Marin - 415-491-0223
- Lakeport - 707-262-0503
- Ukiah - 707-462-5950
- Eureka - 707-445-1348
The Actual Law- California Penal Code 1203.4
(a) (1) 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 Commission.
(2) 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 Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(3) 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.
(4) 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 Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287 or of former Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or 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) (1) 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.
(2) 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 287 or of former Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.
(Amended by Stats. 2018, Ch. 423, Sec. 96. (SB 1494) Effective January 1, 2019.)
To get started with your case, contact us as soon as possible! We offer free consults.