How to Expunge a Felony in California – A Lawyer Explains

In California, you can expunge a felony conviction by:

1. completing the necessary expungement application forms,
2. filing them in the court that heard your case, and
3. appearing before a judge at the expungement hearing.

Many felony convictions are eligible for expungement, though some sex crimes are not. Expungements are more difficult if you served prison time.

The California expungement process

The expungement process in California usually takes around six months to complete.

1. Fill out the correct forms

If your criminal conviction is eligible for expungement, the first step is to get the correct forms. If you have already completed probation, this will typically be the Petition to Dismiss, or Form CR-180. If you have not yet completed probation, you would first have to file a Motion to Terminate Probation to get an early termination. Because the conviction was for a felony offense, you first have to get it reduced to a misdemeanor so it can be expunged. This requires a 17b Motion on Form SUPCR-1128.

These forms will also likely be available at your local courthouse.

Filling out these forms correctly often take the legal advice of a criminal defense lawyer.

2. File them in court

Once filled out, the next step is to file them in the California Superior Court that handled your criminal case. There will likely be a filing fee for the petition for dismissal. These fees vary by county, and may be higher because your case is a felony. They may be waived if you cannot pay them, though this generally requires an additional form. You may also have to serve the petitions with the district attorney or the probation department.

A date will be set for your expungement hearing. This is often in 4 to 5 months.

3. The hearing

The final step is your expungement hearing. You may or may not be required to appear in person. There will not be a jury; just a judge. The court hearing will take around 10 minutes. During the hearing, the judge will consider reasons to deny your request to expunge your criminal record. Some factors they will consider include:

• the nature of the conviction,
• your criminal record,
• whether you are employed or not,
• any community service and involvement you have done,
• whether you violated the terms of your probation, and
• whether an expungement is in the interests of justice.

Resolution

If your petition is successful, the court will open your case, set aside the verdict or guilty plea, and dismiss the criminal case.

If your petition for expungement is denied, you can ask for an explanation. California expungement law lets you refile your petition after 6 months have passed. The new filing should account for the reason the earlier one was denied.

Benefits of clearing your criminal record

There are numerous benefits to expunging your record in California. The five most important benefits are:

1. it helps in getting a job,
2. you can become eligible for a necessary professional license,
3. it can help you join professional organizations that otherwise bar felons,
4. the record cannot be used to impeach you in a subsequent court proceeding, and
5. it is personally satisfying to get a fresh start.

The criminal defense lawyers at our law firm have found that most people want to expunge their criminal record because their record makes it difficult to get a job. Many employers prefer job candidates who do not have a criminal history. They often do a criminal background check as a part of the job application process.

Expunging your conviction can also help you get a job by opening up other professional opportunities, including certifications that are ineligible for ex-felons. By expunging your record, you can overcome this serious collateral consequence of the conviction.

Limits of expungement

Expungement does not completely remove the consequences of a prior felony conviction. Some limitations to expungement are:

• it will not restore your right to own or use a firearm,
• you will have to continue to register as a sex offender, if the conviction requires you to do so,
• the conviction can still be used against you under California’s three strikes law,
• if your conviction bars you from holding public office, it will not overturn that restriction, and
• it will not alter any limitations to your driving privileges, such as a license suspension or revocation for felony convictions for driving under the influence (DUI).

However, the benefits of getting a conviction expunged are still substantial.

Eligible offences

In California, you are generally eligible to expunge prior convictions that did not result in a state prison sentence. If you spent time in county jail, rather than state prison, you likely still have eligibility for an expungement.[1]

However, if you were sentenced to state prison but would have been sentenced to county jail after 2011’s Proposition 47 Realignment law, you may be eligible for expungement.[2] Also known simply as “Realignment,” this law reclassified several felony or wobbler convictions as misdemeanors. According to the ballot initiative, a “yes” vote on Proposition 47 would mean:

“Criminal offenders who commit certain nonserious and nonviolent drug and property crimes would be sentenced to reduced penalties (such as shorter terms in jail). State savings resulting from the measure would be used to support school truancy and dropout prevention, victim services, mental health and drug abuse treatment, and other programs designed to keep offenders out of prison and jail.”[3]

This process is not automatic, though. You need to file a petition with the court and prove that you are eligible for expungement.[4]

Ineligible offenses

Certain criminal offenses cannot be expunged in the state of California. These are generally severe sex offenses involving child victims, including:

• statutory rape (Penal Code 261.5(d) PEN),
• sodomy with a child (Penal Code 286(c) PEN),
• oral copulation with a child (Penal Code 287(c) PEN), and
• lewd acts with a child (Penal Code 2888 PEN).

Under California law, convictions for these and other severe offenses can never be expunged.

Alternatives to expungement

If you are ineligible or unable to get your conviction expunged, there are 3 alternatives that you can pursue:

1. you can have your court records sealed, if you were convicted of a felony in a juvenile court case,
2. you can get a certificate of rehabilitation, and/or
3. you can request the governor’s pardon.

However, our criminal defense attorneys have found that these ways of clearing your name are less likely to apply to your case and are less likely to succeed than the expungement process.

You can also have your arrest records sealed by court order if:

• you were arrested but criminal charges were never filed,
• the court dismissed your case, or
• you were acquitted or found not guilty by a jury.

Legal Citations:

[1] California Penal Code Section 1203.4 PC.

[2] California Assembly Bill 109 AB.

[3] Official Voter Information Guide, “Prop. 47: Criminal Sentences. Misdemeanor Penalties. Initiative Statute.”

[4] See California Penal Code 1203.42.