Expungements

Expungements (Penal Code Sections 1203.4 and 1203.4(A))

In California, a criminal conviction may be expunged (dismissed) by petitioning the court to allow you to withdraw your plea of guilty and thereafter dismiss the conviction. This petition can be filed as soon as a defendant convicted of certain crimes in California has successfully completed his or her term of probation. Sometimes, the court will grant an early termination of probation and at the same time grant the petition for expungement. In general, courts will not consider an early termination of probation until at least half the term has been served without any violations. Whether you are still serving your term of probation or your probation has expired, Orange County expungements lawyer William Weinberg can help you with this process.

Penal Code section 1203.4 allows a defendant who was convicted of certain felonies or most misdemeanors and who was granted a term of probation to petition for expungement of the conviction. Eligible felony convictions are those that could have been convicted as a misdemeanor or a felony (wobblers). These felony convictions must first be reduced to a misdemeanor pursuant to Penal Code section 17(b) before the petition will be considered.

Penal Code section 1203.4a provides that a defendant convicted of a misdemeanor but not ordered to a term of probation to petition for an expungement of the conviction. Section 1203.4a also provides for the expungement of certain non-traffic infractions.

A petition for expungement can request a dismissal of all eligible convictions. For example, if you had multiple convictions in one case and all are eligible for an expungement, you may request the court expunge all in a single petition. If you had separate cases with eligible convictions, you may submit a separate petition for each case.

A petition for expungement is not used if the person was arrested but never convicted of the crime. In such a case, the proper petition is a petition for factual innocence and to seal and destroy the arrest record.

A defendant who petitions the court for an expungement cannot, at the time the petition is filed and considered by the court, be charged with another crime, be serving a sentence for another crime, or be on probation for another crime. Defendants charged with a sex offense against a child and certain statutory rape crimes are not eligible to file the petition. Otherwise most wobbler felony convictions are eligible.

However, felony convictions for which a defendant served time in state prison are not be eligible for an expungement with the exception of Proposition 47 crimes. If the defendant was sentenced and served time in state prison prior to the passage of Proposition 47 (2014) for a crime that was affected by this proposition, the defendant may still be eligible to petition for an expungement of the conviction even though he or she served time in state prison. Generally speaking, the convictions affected by Proposition 47 include many theft and drug possession crimes.

If the defendant successfully served and completed his or her probation term without any violations of probation, the court must grant the petition for expungement of eligible convictions. However, if the defendant violated any term of probation, the expungement is discretionary to the court. In such cases the court will consider the petition in light of evidence that the petitioner has demonstrated his or her rehabilitation. Orange County expungements attorney, William Weinberg, has assisted numerous clients in successfully petitioning the court for an expungement of a conviction with probation violations. He will guide you through the gathering of documentation the court considers evidence of rehabilitation and will prepare a convincing petition on your behalf. More often than not, these petitions are granted.

In most cases, once the petition is granted, the conviction need not be reported. For example, on an employment application, a question such as "Have you ever been convicted of a felony?" can be marked "no." (That is presuming there are no other convictions that have not been expunged.) However, the expunged conviction must still be reported when applying for certain jobs, such as any public officer position or jobs that require state licensing.

Legally, when a petition for expungement is granted, the court has allowed the defendant to withdraw the guilty plea (or nolo contendere plea) and enter a plea of not guilty. If the defendant was convicted by a judge or jury rather than by a plea, the court will set aside the guilty verdict. The court will then dismiss the charge that had been entered against the defendant. Sounds like a complete erasure of the charge and conviction, but in reality, it is not.

It is a common misconception that an expungement will clear the former defendant's record of the crime. Some people confuse expungement with the sealing of the record. This is not the case. The conviction will continue to show on the individual's the California and Federal Department of Justice Criminal History Records (Rap Sheet) but will also show that the conviction was dismissed. The greatest benefit of an expungement is that the conviction does not have to be disclosed on an employment (with certain exceptions mentioned above) or a rental application.

An expungement will not relieve any immigration consequences attached to the conviction. If the conviction was for a crime that is deportable, the federal government will not recognize the dismissal of the conviction under California law. As far as immigration law is concerned, the conviction remains a conviction.

For individuals with convictions eligible for an expungement and who did not violate a term of probation, a petition for expungement is a fairly straight forward process. Orange County expungements attorney, William Weinberg, can ensure the procedure is correctly followed and if needed, can also move for an early termination of probation so that the petition may be filed. In cases where probation was violated and the court has discretion as to whether to grant the petition or not, Mr. Weinberg can put together a persuasive rehabilitation package for presentation with the petition.

Attorney William Weinberg has successfully petitioned for expungement for many clients over his 25 years serving the Orange County community. An expungement can improve employment prospects and other opportunities for the previously convicted person. It is a relatively painless process, and in most cases, you do not have to make a court appearance. It is well worth the effort. Contact Mr. Weinberg at any time to set up a confidential consultation without charge to discuss your eligibility for an expungement. Expungement attorney Weinberg will be able to quickly assess your eligibility for an expungement and the likelihood for a successful dismissal of your conviction.