Penal Code 1203.42 expands the right to “expunge” a crime in California

Posted on January 13, 2023

Penal Code 1203.42 is a California statute that allows a criminal conviction to be expunged if it is now punishable by a county jail sentence following Proposition 47 “Realignment” in 2011.

“Expungement” of a California criminal record “erases” a conviction for most purposes. One of the most important benefits is that an expunged conviction does not need to be disclosed to most potential employers. Nor can it be used as a basis for denying someone a job or promotion.

But up until recently, people who served time in state prison for their crimes were not permitted to expunge their convictions. That right was limited to people who were granted probation and served either no time at all or time in county jail.

In 2011, however, California voters passed Proposition 47, California’s “realignment” law. Under Prop 47, many theft crimes and drug crimes once punishable as felonies were reduced to misdemeanors.

As a result, sentences for those crimes are no longer served in California state prison. Penal Code 1203.42 makes it possible to have those crimes reduced and expunged from someone’s criminal record.

Who can expunge a conviction under Penal Code 1203.42?

Penal Code 1203.42 allows a crime to be expunged if it is one that is now punishable by a county jail sentence.

The defendant must also satisfy the general requirements for expungement under Penal Code 1203.4, namely:

1. At least two years have passed since the defendant completed his or her sentence,
2. The conviction was not for a serious felony or violent felony or certain sex crimes involving children, and
3. The defendant is not currently:

• charged with a criminal offense,
• on probation or supervised release, or
• serving a sentence for a crime.

How does someone obtain an expungement under PC 1203.42?

Penal Code 1203.42 relief is not automatic. The defendant must file a petition with the court and prove that he or she qualifies.

If the petition is granted, the court will either:

• Allow the defendant to withdraw his or her original plea of guilty or “nolo contendere” (no contest) and enter a plea of not guilty, or
• If the defendant was convicted after a plea of “not guilty,” set aside the verdict.

The court will then dismiss the charges and the conviction will cease to exist for most purposes.

Note that the conviction may still generally be used, however:

• In connection with an application for a job requiring use or possession of a firearm (for instance, law enforcement), and/or
• By the United States Customs and Immigration Service to deport or deny admission to a non-U.S. citizen.

For more information, please refer to our article on “Expungement” of a California criminal record under Penal Code 1203.4.

Or call us for a free consultation with one of our California criminal defense lawyers.