Expungement

This is probably the most important question before you even think about getting an expungement. There are several factors that you must consider before even filing for an expungement.  Most people who are convicted of a misdemeanor or felony are eligible for expungement if (1) they completed probations and either (2) did not serve time in state prison or served time in prison but would not have under Proposition 47. Finally, you should know now that marijuana is legal for recreational use, the California Department of Justice is in the process of reviewing and sealing all past marijuana convictions that are no longer considered crimes.

            Prison vs. Jail

You might have noticed that you are eligible for expungement only if you served time in jail – rather than prison. Jails are operated by cities and counties and are located in cities. They are designed to hold people for short periods, often less than a year, and to hold people pending court appearances. Jails are minimum security, you have a lot more freedom, and are not as strict as a prison. If you are convicted of a misdemeanor, you serve time in jail.

Conversely, if you are convicted of a felony, you serve time in prison. Prisons are operated by the state government and are located outside and away from cities. They hold people for long periods of time,and there is much tighter security. Necessarily, if you went to prison, the presumption is that you were convicted of a serious crime.

            How do youcomplete probation?

Probation is a period after you are convicted during which you are required to abide by certain obligations imposed by the court designed to ensure that you remain a lawful citizen. Often, during probation, your rights against unreasonable search and seizure are severely restricted, you are prohibited from committing future criminal acts for a period of years, you may have to attend counseling or therapy classes, drug treatment, community service, or other programs, pay fines or restitution, attend court hearings, and call-ins to a probation officer. You complete probation when you serve out your term, complete all assigned requirements (i.e., hours of therapy, probation, volunteer work, etc.) and do not commit any new crimes while on probation.

What happens if you violate probation? Are you forever barred from expunging your conviction? Not necessarily. You do have a higher burden to meet,but you can petition the court for a special hearing to argue that you are a good candidate for expungement. But bear in mind that the court has discretion to dismiss your conviction if you violated probation. The court will examine all relevant facts, including, but not limited to:

• Your overall performance on probation (e., the violation wasn’t that serious considering your whole record);
• Your criminal history;
• The seriousness of the conviction;
• The impact of the conviction on your ability to get a job (the more specific the job, the better);
• Community support; and
• Family support.

            Prop 47

Proposition 47 changed many laws in California from felonies to a misdemeanor and reduced the amount of jail or prison time certain offenders can serve. The changes enacted by Prop 47 are discussed more fully below.

            Who is ineligible?

Some individuals might meet all of the requirements, complete probation, and are still not eligible because they were convicted of certain serious felonies, including:

• Pen. Code Sec. 261.5(d): statutory rape – a person 21 years and older who has sex with a person younger than 16.
• Pen. Code Sec. 288: committing lewd acts on a child.
• Pen. Code Sec. 288a: oral copulation with a child.
• Pen. Code Sec. 286(c): sodomy with a child.

This list is illustrative, not exhaustive; there are other crimes as well which are ineligible for expungement.

You can petition for expungement under Cal. Pen. Code Sec. 1203.4. To expunge your record, you will need a copy of your criminal record which you can get from the court in which you were convicted. Once your probation is completed, you can apply for an expungement. If you were convicted of a misdemeanor, you can file a form CR-180 and submit it with the court in which you were convicted.

If you were convicted of a felony, you may only expunge your conviction if you served time in jail, served time in prison but would not have if Prop 47 was around, or if the crime is a wobbler (i.e., it can be charged as either a misdemeanor or a felony). To expunge a felony, you may petition the court to reduce your sentence from a felony to a misdemeanor and then file the form CR-180. In the petition, you must show that your life has rehabilitated, you take responsibility for your actions, and you are moving forward with your life and need this record expunged to make that happen.

If you were convicted of a more serious felony, you could apply,but it depends on the circumstances (as discussed above). First, you must file two petitions: first, a petition to reduce the crime to a misdemeanor, and second, a petition to expunge – similar to the process above. If you served time in prison, you might only expunge your record if you filed a petition for Certificate of Rehabilitation and Pardon which requires you to prove that you are rehabilitated and are taking every step possible to change your life.

            How long does it take?

Every petition is different but you can expect the process to take about one-two months,but it can vary depending on where you live. If you are actively seeking employment, it is possible to expedite the process.

            How much does it cost?

The cost varies depending on where you need to file your petition,but you can expect it to be between $100 and $400 per application. You do have to submit individual applications for each conviction – you aren’t allowed to bundle multiple convictions into a single petition.

            Do you have to appear in court?

You don’t have to; the law allows the lawyer to appear on your behalf. However, and this is a discussion for you and your attorney, it might be a good idea to appear because it demonstrates to the judge that you are taking your petition seriously.

            Can you say “no, I don’t have a criminal record”?

Yes, once the expungement is granted, you can safely respond to employer questions that you don’t have a criminal record – subject to limitations discussed in the next section.

An expungement performs two functions. First, it changes your plea from “guilty” or “nolo contendere” to “not guilty” and vacates the verdict – so the effect is like you were never convicted. However, an expungement does not erase your arrest record,and the not guilty plea remains on public records, so you are still charged.

However, even though the arrest records remain, an expungement is still very beneficial. Prospective employers cannot discriminate against you for jobs based on an expunged conviction. It is easier (although eventrying) to apply for professional licenses. Expunged convictions also avoid certain consequences related to immigration, such as citizenship applications and deportations.

Furthermore, it cannot be over-emphasized the value of expunging a criminal record in the digital age. Before only law enforcement personnel could access a person’s criminal history but now companies scan and index criminal records all over the country such that anyone can search your criminal history with your name and date of birth. Expunging your conviction clears your name from these databases so prospective employers or even prospective dates can’t access your records.

Ultimately, however, expungement is worth it because your criminal convictions remain on your record for the rest of your life until they are expunged. Convictions, unlike bankruptcy filings, don’t fall off your record.

An expungement cannot restore all of your rights, however. For example, it can’t reinstate your driver’s license; it can’t get you off the sex offender registry or end your obligation to re-register, and it cannot restore your right to possess and own firearms. Also, if you are subsequently convicted, the prosecutor can still use previously expunged convictions to argue for enhanced sentencing (i.e., to add more years to your sentence). Finally, if your expunged conviction counted as a “strike” under the Three Strikes Law, the strike remains on your record. If you would like to restore these rights, you need to apply for a Governor’s Pardon or a Certificate of Rehabilitation.

            Expungement does not prevent people from finding out about your conviction

In case you didn’t catch it, expungement doesn’t erase your record it:

• Withdraws your guilty plea;
• Enters a “not guilty” plea;
• Terminates probation; and
• Dismisses the case.

The case is still discoverable,and a person may still find that you were convicted,but your records will also reflect that your conviction was expunged. But, keep in mind, that even if though the conviction can be found; it still looks good because an expungement is a seal of approval from the California government saying that you are ready to make a fresh start.

            Mandatory Disclosures

You are also required to disclose your conviction if you are seeking public office, applying to be a peace officer, seeking a professional license, or if you are trying to secure a contract with the state lottery.

            Immigration Consequences

If you aren’t a U.S. citizen, an expungement does not prevent you from experiencing all immigration consequences; including deportation or inadmissibility for citizenship. However, even though the expungement does not expressly protect you from immigration consequences, it is still beneficial. For example, if through the process, you reduce a felony to a misdemeanor; the new misdemeanor crime may not be an “inadmissible” crime,and therefore you may still be eligible to apply for naturalization or a green card.

Proposition 47 was passed by California voters in 2011,and it changed many theft and drug crimes from felonies to misdemeanors which means that convictions for those crimes no longer result in prison but are instead served in jail (which, if you recall from above, is good if you want to expunge your conviction).

Prop 47 now allows you to petition to expunge your record if you would have served jail time under the realignment law. You are eligible if:

• At least two years have passed since you completed your sentence;
• The conviction was not severe and did not involve crimes against children (think armed robbery and statutory rape laws);
• You are not currently:
  1. Charged with a crime;
  2. On probation;
  3. On supervised release; or
  4. Serving time.

If you are eligible, you can petition the court for expungement in which case it proceeds in the same manner as described above. Also, keep in mind, expungements under Prop 47 aren’t special; you are still subject to the same restrictions as other expungements.

Expungement and sealing records deal with two different issues. Expungement is about expunging records of criminal conviction. Sealing records is sealing records of arrest. If you want to clean your record totally, you must apply to expunge your record and to seal your arrest record. You can apply to seal your arrest record if:

• You were arrested but never charged;
• The case was dismissed;
• You were acquitted by the jury;
• Your conviction was vacated or overturned;
• You successfully completed a diversion program, such as drug or mental health treatment.

If your record is sealed, you can legally say that you were never arrested for a crime. However, an expungement does not grant you this right in and of itself.

Juvenile records are records of criminal activity that occurred before an individual reaches adulthood (or commits a crime that is so serious as to warrant charging as an adult). Sealing a juvenile record is a different process than adult record sealing or expungement,but it confers a similar benefit. You can seal your juvenile record if:

• You are an adult; or
• The juvenile court’s jurisdiction over the case terminated at least five years ago (this is an extremely rare circumstance);
• Additionally, as an adult, you haven’t been convicted of any serious crimes (including crimes of moral turpitude, e., crimes involving dishonesty or immoral behavior); and
• You are not subject to pending civil litigation resulting from the juvenile

If the judge grants your petition, it is sealed for three years and after that period passes, is destroyed.

Do you need the assistance of a criminal defense lawyer to help you draft a petition to the court to expunge your criminal record or for help defending yourself against criminal charges, contact the Los Angeles Criminal Lawyer at 310-502-1314 today. The Los Angeles Criminal Lawyer serves clients throughout Los Angeles County and Southern California, from clients in Westwood and Marina Del Rey to families in Long Beach, Cypress, and Lakewood, and out East in Downey, West Covina, and the City of Industry. Our law firm is a full-service firm that helps their clients seal their arrest records and expunge convictions, to defend them in court against a litany of charges from felony battery and assault to misdemeanor DUIs, identify theft, domestic violence, fraud, abuse, and many other crimes. Our attorneys know how to conduct an effective defense – do not hesitate to ask us for assistance.