Expungement of criminal records in California--as provided for in Penal Code 1203.4--means that a prospective employer is barred from using your past conviction against you in hiring decisions--even asking you about it in the interview, for that matter.
You are not eligible for expungement if you are currently charged with a criminal offense, are on probation for a criminal offense or are serving a sentence for a criminal offense. You are also not eligible for expungement if you were convicted of certain sex crimes involving children.
In this article, our California criminal defense attorneys1 address the following:
If, after reading this article, you would like more information about criminal record expungements in California, we invite you to contact us at Shouse Law Group.
California Penal Code 1203.4 PC provides that once an individual's criminal record is expunged, the person is released from "all penalties and disabilities" arising out of the conviction.2
And as Newport Beach criminal defense attorney John Murray3 explains, "This is especially important because in today's economy -- where finding a job is tougher than ever -- you want to do everything in your power to make yourself the most desirable candidate. Clearly, this includes being able to state that you have a clean criminal record."
Expungements are also beneficial for securing or maintaining California professional licenses and for joining many professional organizations. This relief offers you a "fresh start" from an otherwise questionable past.
As a basic rule, you're entitled to expunge your criminal records in California if you were convicted of a misdemeanor or felony offense, and you
- successfully completed probation, and
- are not currently charged with a criminal offense, on probation for a criminal offense or serving a sentence for a criminal offense.4
You must have successfully completed your probation in its entirety (or obtained an early termination of probation, discussed below).
If you got sent to California state prison -- either at the time of judgment, or because of a probation violation -- you do not qualify for an expungement.5
"Successfully completing your probation" means that you
- completed all the terms of your probation (that is, paid all fines and restitution, completed any counseling programs, community service, etc.),
- attended all required court appearances (either personally or through your attorney), and
- did not commit any new crimes while on probation.
As we stated, you cannot expunge a conviction if you were sent to state prison.
Beyond that, there are also certain criminal offenses in California that cannot be expunged. These include serious sex offenses committed against children, such as
- Penal Code 286(c) PC California's law against sodomy with a child,
- Penal Code 288 PC California's lewd acts with a child law,
- Penal Code 288a (c) PC California's law against oral copulation with a child, and
- Penal Code 261.5(d) PC California's statutory rape law which prohibits sexual intercourse between persons who are 21 years and older with persons younger than 16.6
If you completed your probation without a violation, you are entitled to expunge your California criminal record.
But if you failed successfully to complete your probation -- and you received a probation violation -- all hope is not lost. The court will hold a special hearing to determine whether you are nonetheless a good candidate for expungement.7
In the wake of a probation violation, the court has wide discretion as to whether to grant or deny the petition for expungement. Factors that the judge may consider include (but are not limited to):
- your overall performance while on probation,
- the seriousness of the underlying conviction,
- your criminal history, and
- any additional evidence you can provide to demonstrate why you are deserving of this relief, such as
- your opportunity to obtain a good job,
- the fact that you support your family,
- the fact that you have strong community ties, etc.
Before the court will grant a California expungement, there are several steps that you -- with assistance of your attorney -- must follow. These include
- analyzing the case to determine whether you are, in fact, eligible for this type of relief,
- performing legal research as to the current and relevant law,
- filing the appropriate paperwork within the proper timeframes (for example, you must provide the prosecutor with at least 15 days' notice prior to your expungement hearing so that he/she has an opportunity to review your case and object if desired),8 and
- attending the expungement hearing in the designated court.
But even if you follow all of these steps -- and the judge grants your expungement -- there are still restrictions and limitations as to what an expungement will ultimately do for you.
There are numerous benefits to obtaining a California expungement. The most significant include (but are not limited to):
- helping you secure employment...Per California law, an employer may not
- discriminate against you for being involved in any arrest that didn't result in a conviction,
- inquire about the fact that you suffered an arrest that didn't result in a conviction, or
- discriminate against you based on the fact that you have expunged convictions,9
- helping you obtain a state professional license,
- preventing any expunged prior convictions from being used to impeach your credibility as a witness in court (unless you are the defendant being prosecuted in the subsequent case),10 and
- possibly helping you avoid certain immigration consequences such as deportation.
Up until recently, a person's criminal history was unlikely to be discovered by anyone but law enforcement. Although criminal records were always public information, rarely would a potential employer sift through millions of court records to see whether a particular job applicant showed up.
Then information companies began indexing criminal court records into vast national databases that could be searched by name and date of birth. This new technology allows potential employers, licensing agencies and professional organizations to conduct a background check of your criminal record in moments.
But just as it's easy for employers to do background checks, so too it's relatively easy to expunge your California criminal records.
Unfortunately, there are also several limitations as to what an expungement can do. For example, an expungement will not
- overturn a driver's license suspension or revocation,11
- restore your California gun rights under Penal Code 29800 PC California's felon with a firearm law,12 or
- end your duty to register as a California sex offender under Penal Code 290 PC.13
In addition, expunged convictions may still be used as prior convictions to enhance sentencing (such as with multiple DUI convictions) and as "strikes" for purposes of California's three strikes law.14 These types of limitations are discussed in more detail under our article "What an expungement will NOT do".
If you meet the other eligibility requirements, you may petition the court to expunge your California criminal record as soon as you have completed probation, or as soon as a early termination of probation is granted.
Many times, your California criminal defense lawyer can expedite the expungement process by "packaging" a number of motions into one. The most common example of this includes asking the court to
- grant an early termination of probation (which the court has the option of granting as long as you are in compliance with the terms of your probation),
- reduce a felony to a misdemeanor (in cases where the felony offense is classified as a "wobbler" -- that is, a charge that the prosecutor could have filed as either a felony or a misdemeanor), and
- expunge your conviction
all in the same proceeding.
Many people who contact us about expungements also wish to "seal and destroy" adult and juvenile criminal records. Sealing and destroying arrest records is a totally different process from expunging records of criminal convictions.
- were arrested, but the prosecutor never filed criminal charges,
- had your case dismissed in court, OR
- were acquitted by a jury following a jury trial,
you may be entitled to have your arrest records sealed and destroyed.16 This relief allows you to state in all honestly that you have never been arrested for a crime (since a judge must declare you factually innocent before he/she will grant this type of motion).
Sealing California juvenile court records provides you with the same benefits. You qualify for this relief if
- you are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
- as an adult, you have not been convicted of any crimes of moral turpitude (that is, a crime involving dishonesty or immoral behavior), AND
- there is no pending civil litigation based on the juvenile incident.
Once the judge grants your motion to seal and destroy your records, the arrest record is ordered sealed for 3 years and destroyed thereafter.17
Q. How long will my criminal record stay on the books after I get an expungement?
A. Criminal records are maintained indefinitely. Criminal records do not automatically go away after a certain amount of time. If the court doesn't expunge or seal and destroy your records, they will always be a part of your criminal record.
Q. Who can access my criminal record after I get an expungement?
A. Criminal records are "public records", so anyone can access your record, unless the record is sealed. This includes (but is not limited to) potential employers and licensing agencies.
Q. What happens when I expunge my record?
A. In California, when you expunge your record, your plea of guilty or no-contest, or conviction after trial will be set aside by a judge. You will then enter a plea of "not guilty", and the judge will then dismiss your case.18
Q. How long does it take to expunge my record?
A. It depends on the county which you live in, but generally we can have the petition filed and heard within one to two months. In cases where clients are actively seeking employment, we can seek to expedite the process.
Q. How do I find out if I qualify to have my record expunged?
A. Generally, if you (1) committed a felony or misdemeanor and were not incarcerated in the California state prison, (2) fulfilled the terms of your probation, and (3) were not convicted of one of the specific crimes that are not eligible to receive a California expungement.19 But to make sure, call us for a FREE, CONFIDENTIAL consultation!
Q. What is "felony reduction"?
A. If you have a conviction for a "wobbler" (that is, a crime that can either be charged as a felony or misdemeanor), you can generally reduce the felony conviction to a misdemeanor.20
Q. Will you reduce my felony to a misdemeanor prior to expunging the record?
A. Yes. If your conviction is for a wobbler, we will petition the court to have the felony reduced to a misdemeanor prior to having it expunged. We will also ask for an early termination of probation where appropriate.
Q. Does it cost more to have my felony reduced BEFORE expungement?
A. No. The price is the same, it just expedites the process.
Q. Do I have to appear in court?
A. Generally not. The California expungement process typically allows a lawyer to appear on your behalf through all stages of the proceedings.21
Q. What is the filing fee for a California expungement?
A. It varies, depending on (1) the county in which you reside, and (2) whether you were convicted of a misdemeanor or a felony.
For example, Los Angeles County doesn't charge a filing fee per se, but will charge a maximum of $120 once the court rules on your motion. San Bernardino County charges a $270 filing fee. San Diego County charges a petition fee of $60 for a misdemeanor and $120 for a felony. All counties have some type of financial assistance available for those who are unable to pay.
Q. How will I know that my California criminal record was expunged?
A. We will provide you with a signed order by a California Superior Court Judge setting aside your conviction and dismissing your case.
Q. After my record is expunged, can I answer "No" if I'm asked whether I have a criminal record?
A. Yes, this is one of the benefits of obtaining a California expungement. If the court grants your expungement, you can legally answer "no" if you are asked whether you have a criminal record. There are, however, three exceptions:
- if you plan to become a peace officer or run for public office,
- if you want to work for the California Lottery commission, or
- if you want to apply for state license.22
Q. Will expunging my record help me find a better job?
A. Many times, yes. If the employer doesn't run a background check, then they will probably never find out about the conviction (since you no longer have to disclose the conviction). And even if an employer does conduct a background check, the employer will see that the conviction was expunged which means you are now ready to make a "fresh start".
Q. Will expunging my record help me obtain a state license?
A. Often times, yes. Many California state licensing authorities require that you expunge the record of your conviction prior to the issuance of the license. However, when an expungement is not enough, we may be able to help you obtain a "Certificate of Rehabilitation" which offers even more benefits.23
Q. What is a "Certificate of Rehabilitation"?
A. A Certificate of Rehabilitation is a court order that states that you have been rehabilitated.24
You must wait between seven (7) and ten (10) years after being released from custody, depending on the specific offense of which you were convicted.25
There are many benefits to a Certificate of Rehabilitation. First, it's an automatic application for a Governor's Pardon. Second, it means that you cannot be denied a state license without other cause.
Third, it sends a message to prospective employers that you have overcome your criminal history and are prepared to make a fresh start.
Finally.and along these same lines.employers (and prospective employers) are not allowed to discriminate against you for any arrests that didn't result in conviction. Moreover, they aren't even allowed to inquire about them.26
Q. What is a Governor's Pardon?
A. A Governor's Pardon is the ultimate relief from the penalties and disabilities associated with a criminal conviction.27
You must wait least ten (10) years after being discharged from probation or parole if you are applying directly to the governor for a pardon, unless you first obtain a finding of factual innocence (discussed above under section 2. sealing and destroying records).28
If, however, you receive a Certificate of Rehabilitation.which can be granted in as little as seven (7) years after your release from custody.the Certificate acts as an automatic application for this relief.
Q. What are my options for sealing and destroying my California arrest records after I get an expungement?
A. There are a number of ways to seal records. The most common are: (1) sealing of juvenile records, (2) sealing of arrest records, and (3) sealing of records after plea withdrawal and case dismissal.
In order to be eligible for sealing your juvenile record, you must meet two criteria. First, the juvenile court jurisdiction must have terminated at least five years ago. Second, you must not have suffered a conviction for a crime of moral turpitude (that is a dishonest or immoral crime) as an adult.29 However, even if you meet these criteria, there are certain serious crimes such as murder, robbery and child molestation that do not qualify for record sealing.30
Sealing of arrest records is generally possible if
- you are arrested and no accusatory pleading was filed,
- the DA dismissed your case, or
- you were found "not guilty" after a California jury trial.31 If you prove that you were factually innocent of the charges, then the arrest record is ordered sealed for 3 years and destroyed thereafter.32
Q. I have a felony and can't get a green card or citizenship. Can you help me?
A. Yes. We may be able to reduce your felony to misdemeanor, therefore making you eligible for permanent residency and ultimately U.S. citizenship. Alternatively, we could possibly have your conviction set aside completely.
Once we review the facts and circumstances of your case, we will research the most promising options to help avoid immigration issues such as deportation or removal.
Q. I am required to register as a sex offender pursuant to California Penal Code 290 PC. Can an expungement help me obtain relief from my lifetime duty to register as a sex offender and get off Megan's list?
A. Yes. A California expungement cannot provide this type of relief--but Certificates of Rehabilitation and Governor's Pardons can. However, there are certain exceptions that disqualify you from being able to discontinue registering as a sex offender, depending on the exact offense of which you were convicted.33
Call us for help.
If you or loved one is in need of help for criminal record expungments and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to How to Seal Nevada Criminal Records. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.34
¿Habla español? Visite nuestro sitio Web en español sobre el cancellation de antecedentes penales en California.
California Superior Court Expungement Forms-
http://www.courtinfo.ca.gov/forms/fillable/cr180.pdf (Petition for Dismissal)
http://www.courtinfo.ca.gov/forms/fillable/cr181.pdf (Court's Order for Dismissal)
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2California Penal Code 1203.4 PC -- California expungement law, endnote 1, above. ("(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.")
3Newport Beach criminal defense lawyer John Murray represents clients throughout Orange County including Newport Beach, Fullerton, Laguna Beach, Irvine, Santa Ana, Anaheim and Westminster.
4See endnote 2, above.
5See endnote 2, above.
6California Penal Code 1203.4 PC -- California expungement law, endnote 1, above. ("(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 [the California Penal Code] subdivision (c) of Section 286 [California's law against sodomy with a child], Section 288 [California's child molestation law], subdivision (c) of Section 288a [California's law against oral copulation with a child], Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5 [California's statutory rape law], or to any infraction.")
7California Penal Code 1203.4 PC -- California expungement law, endnote 1, above. A California probation violation qualifies as "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."
8See same. ("(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.")
9California Labor Code 432.7 -- Disclosure of arrest or detention not resulting in conviction or referral or participation in diversion programs; violations; remedies; exception; screening prospective concessionaires. ("(a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.")
See also California Code of Regulations 7287.4 -- Employee selection. ("(d) Specific Practices. (1) Criminal Records. Except as otherwise provided by law (e.g., 12 U.S.C. 1829; Labor Code Section 432.7), it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning: (A) Any arrest or detention which did not result in conviction; (B) Any conviction for which the record has been judicially ordered sealed, expunged, or statutorily eradicated (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code Section 389 and Penal Code Sections 851.7 or 1203.45); any misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed pursuant to Penal Code Section 1203.4; or (C) Any arrest for which a pretrial diversion program has been successfully completed pursuant to Penal Code Sections 1000.5 and 1001.5.")
10California Evidence Code 788 -- Prior felony conviction. ("For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless.(c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4 [California's expungement law], but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.")
11California Vehicle Code 13555 VC -- Effect of California expungement. ("A termination of probation and dismissal of charges pursuant to [California Penal Code] Section 1203.4 or a dismissal of charges pursuant to Section 1203.4a of the Penal Code does not affect any revocation or suspension of the privilege of the person convicted to drive a motor vehicle under this chapter. Such person's prior conviction shall be considered a conviction for the purpose of revoking or suspending or otherwise limiting such privilege on the ground of two or more convictions.")
12California Penal Code 1203.4 PC -- California expungement law, endnote 1, above. ("Dismissal of an accusation or information pursuant to this section does not [restore the right to own or possess a firearm under Penal Code 29800 PC California's "felon with a firearm" law]. [It 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 29800.")
13California Penal Code 290.007 PC -- Effect of California expungement. ("Any person required to register pursuant to any provision of the Act shall register in accordance with the Act, regardless of whether the person's conviction has been dismissed pursuant to [California Penal Code] Section 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5.")
14California Penal Code 1203.4 PC -- California expungement law, endnote 1, above. ("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.") Thus, sentencing for multiple DUI convictions and California's three strikes law are unaffected by expungement. For more examples of the limitations on expungement, please review our article "What an Expungement Will Not Do").
15See same. ("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.")
16California Penal Code 851.8 PC -- Sealing and destroying records.
17California Welfare and Institutions Code 781 -- Sealing juvenile records.
See also California Welfare and Institutions Code 781.5 -- Sealing juvenile records.
18See California Penal Code 1203.4 PC -- California expungement law, endnote 1, above.
19California Penal Code 1203.4 PC -- California expungement law, endnote 3, above.
20California Penal Code 17(b) PC -- Felony reductions. ("(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison. (2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor. (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.")
21California Penal Code 1203.4 PC -- California expungement law, endnote 1, above. ("The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing.")
22See same. ("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.")
23California Business and Professions Code 480 -- Acts disqualifying applicant.
24California Penal Code 4852.16 PC -- Pardon; certificate as application; issuance; recommendation.
25California Penal Code 4852.03 PC -- Period of rehabilitation; determination of period.
26See endnotes 9, 23 and 24 above.
27California Penal Code 4852.17 PC -- Report of certificate of rehabilitation or pardon; rights restored by pardon; exceptions.
See also California Penal Code 4853 PC -- Restoration of rights, privileges and franchises; exceptions.
28How to Apply for a Pardon -- State of California, Office of the Governor. ("Absent extraordinary and compelling circumstances, an application will not be considered unless the applicant has been discharged from probation or parole for at least 10 years without further criminal activity during that period. The 10-year rule may be waived in truly exceptional circumstances (for example, factual innocence), if the applicant can demonstrate such circumstances warranting a specific need for the pardon.")
29See endnote 17, above.
30California Welfare and Institutions Code 781, endnote 16, above.
31See endnote16, above.
33California Penal Code 290.5 PC -- Pardon or certificate of rehabilitation; relief from duty to register.
34Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's expungement laws. Our Nevada law offices are located in Reno and Las Vegas.