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To be clear, if a person was sentenced to state prison, they cannot have their conviction expunged, UNLESS it was a crime for which they would not receive a prison sentence today. Additionally, certain felony convictions, such as child sexual assault, cannot be expunged under California law, including Penal Code 286(c) PC, Penal Code 288 PC (California’s lewd acts with a child legislation), Penal Code 287(c) PC (California’s statute against oral copulation with a child), and Penal Code 261.5(d) PC (California’s statutory rape law prohibiting sexual intercourse between persons 21 and older and persons younger than 16).
Typically, an expungement applicant must have completed all probationary requirements successfully. However, even if a probation violation occurred, a special hearing can determine whether the applicant remains an excellent candidate for expungement.
After a probation violation, the court has broad power to decide whether to approve or deny a PC 1203.4 expungement petition. The judge may consider the following factors (but not limited to): the applicant’s performance during probation, the severity of the conviction, the applicant’s criminal history, and any other evidence that supports the applicant’s eligibility for relief, such as strong community connections, family support, and job prospects.
Defendants sentenced to state prison may have their convictions expunged, including those who would have received a prison sentence for an offense after the enactment of Proposition 47 Realignment Act in 2011. California Penal Code 1203.42 PC has this exception. Penal Code 1203.42 relief is not automatic; it must be granted at the court’s discretion if it serves the interests of justice.
To qualify under PC 1203.42, the offense must currently be punishable in county jail, and the defendant must have served at least two years of the sentence and not be on probation, supervised release, or charged with any crime.
To qualify for expungement under Penal Code 1203.42, defendants must file a petition with the court. The defendant or their attorney or probation officer with written permission can file the application. The court may then:
Allow the defendant to withdraw their guilty plea or plea of no contest and enter a plea of not guilty or
Set aside the guilty verdict if the defendant was convicted after entering a plea of not guilty.
In any case, the charges will be dismissed, and the defendant will be free of all fines and disabilities associated with the offense, to the same extent as a regular expungement under PC 1203.4.
To obtain an expungement under Penal Code 1203.4 PC, the following steps must be taken:
Analyze the case to determine the defendant’s eligibility for relief
Conduct legal research on relevant laws
File the appropriate paperwork within the specified time frames
Attend the expungement hearing at the designated court.
It is critical to file documents on time. For example, the expungement applicant must notify the prosecutor at least 15 days before the hearing, allowing them to examine the case and contest if necessary.
California Penal Code 1203.4 PC provides a form of post-conviction relief that allows individuals to withdraw a guilty or no contest plea, enter a not guilty plea, and have their case dismissed. With an expungement, people are released from “all penalties and disabilities” resulting from a conviction, providing a fresh start and relieving them of the negative impacts of a criminal record.
Expungements also offer many benefits such as the ability to secure or maintain professional licenses and join various professional organizations. Our experienced California criminal defense attorneys explore the following topics to help you better understand the expungement process under PC 1203.4:
As a general rule, individuals are eligible for expungement if they have completed their probation, paid all fines and restitution, finished any counseling programs, community service, and met all the requirements of their probation. To be eligible, applicants must not have any pending criminal charges, be on probation, or serving a sentence for a crime. PC 1203.4 relief is only available to individuals who have completed all their probation or obtained an early termination of probation.
What is “realignment,” and how does it affect PC 1203.4 eligibility? Individuals who were sentenced to a California state prison or violated their probation by going to jail are usually not eligible for an expungement. However, those who would have served their sentence in county jail are exempt.
Can convicts who worked as firefighters in a prison fire camp obtain an expungement? Yes, in most cases. They may also be eligible to have their parole revoked, and further details can be found in California Assembly Bill 2147 (2020).
If you need help with the expungement process, contact the experienced California criminal defense attorneys at Spodek Law Group. We provide professional legal representation and guidance to help you achieve your desired outcome. Get in touch with us today to schedule a consultation.
If you have a criminal record, you may be wondering what options you have to clear your record and move forward with your life. Luckily, obtaining a California expungement has various advantages that can help you achieve your goals and live your life to the fullest. Here are some of the most crucial benefits of expungement that you should be aware of:
One of the biggest advantages of an expungement is that employers are prohibited from discriminating against job applicants who have had their convictions removed. This means that you have a better chance of landing a job and pursuing your career goals, as your past mistakes will not be held against you.
An expunged conviction cannot be used to undermine someone’s credibility as a witness in court (unless the person is the defendant being tried in a subsequent case). This means that you can testify in court with confidence, without worrying that your past will be used against you.
In some situations, expunged convictions can help you escape certain immigration repercussions, including deportation. This is particularly important if you are an immigrant or a non-citizen living in the US.
Expungement is more important now than ever before, due to the rise of data businesses that index criminal court records into massive national databases that can be searched by name and birth date. Potential employers, licensing agencies, and professional groups may now do a background check and find a criminal record in seconds thanks to this new technology.
However, an expungement’s advantages come into play because potential employers can now easily learn about a previous criminal conviction. If a conviction has been expunged, they are not allowed to use it as a reason to reject a job applicant.
Unfortunately, an expungement under California Penal Code 1203.4 PC is limited in what it may accomplish. An expungement will not, for example, overturn a driver’s license suspension or revocation, nor would it restore California gun rights under Penal Code 29800 PC (the felon with a firearm legislation), or relieve a person of the requirement to register as a California sex offender under Penal Code 290 PC.
Convictions that have been expunged may still be used as prior convictions to enhance sentencing. If a person is later arrested for another DUI, an erased DUI conviction still counts as a previous.
A conviction that has been expunged but still counts as a “strike” under California’s “three-strikes” statute is still a strike.
Alternative methods of post-conviction remedy can often restore more rights. A Certificate of Rehabilitation (COR) and a Governor’s Pardon are examples of these.
A person who meets the requirements of PC 1203.4 may petition the court to have a conviction expunged if one of the following events occurs first:
a court-approved early termination of probation, or
an early termination of probation.
It’s worth noting that a person who qualifies under PC 1203.42 can only petition the court after serving at least two years of his or her sentence.
Sealing a juvenile court record in California can offer several advantages, such as improved employment prospects and greater access to housing opportunities. To seal a juvenile arrest record, the following conditions must be met:
The individual has not been convicted of any crimes of moral turpitude as an adult, and
There is no pending civil litigation based on the juvenile occurrence.
Once a judge grants a motion to seal and destroy the juvenile arrest record, it remains sealed for three years before being destroyed.
Here are some frequently asked questions about PC expungements:
Q: How long will my felony record be on the books after I get it expunged?
Even if a conviction is expunged under Penal Code 1203.4 PC, criminal records are kept permanently. The conviction(s) will always remain a part of someone’s criminal record unless the court seals and destroys the record(s).
Q: Who can view my criminal record after I get an expungement?
Criminal records are considered public records, and anyone can view them unless they are sealed. Therefore, potential employers, landlords, and licensing authorities may still request criminal records even after a PC 1203.4 expungement.
Q: How long does it take to have my record expunged?
Typically, a PC 1203.4 petition can be filed and heard within one to two months. However, the process duration varies based on the petitioner’s home county. We understand that our clients may be actively looking for work, and we can attempt to expedite the process.
Q: Will you reduce my felony to a misdemeanor before expunging it?
Absolutely. If our client was convicted of a wobbler offense, we will request that the court downgrade the felony to a misdemeanor before seeking expungement under PC 1203.4. We will also request an early termination of probation when appropriate.
Q: Do I have to appear in court for the expungement hearing?
In most cases, the California expungement process allows an applicant’s lawyer to appear on their behalf at all stages of the proceedings.
Q: How will I know whether my felony record in California has been expunged?
We provide our clients with a signed order by a California Superior Court Judge, which throws aside the conviction and dismisses the case.
Q: Can I say “No” if asked whether I have a criminal record after my record has been expunged?
Yes. One of the significant advantages of obtaining a PC 1203.4 California expungement is the ability to legally answer “no” if a job applicant is asked about a criminal record after the court has granted an expungement. However, this does not apply if the person is applying for a job with the California Lottery Commission or a state license or wants to become a peace officer or run for public office.
Q: What is a Certificate of Rehabilitation?
A Certificate of Rehabilitation (COR) is a court ruling that certifies someone as rehabilitated after a criminal conviction. Depending on the precise offense, the applicant must wait between 7 and 10 years after being released from custody.
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