Under California Penal Code 1203.4 PC, an expungement is a petition that a defendant in a criminal case can bring at the conclusion of probation. The petition asks the court to allow the defendant to withdraw any plea of guilty or no contest, to reenter a plea of not guilty, and to dismiss the case. If granted, the expungement releases an individual from the negative consequences of a conviction.
Who is eligible to have a conviction expunged?
- The defendant has successfully completed probation for the offense, and
- The defendant either:
- Did not serve time in state prison for the offense, or
- Served time in state prison, but would have served it in the county jail had the crime been committed after implementation of “Realignment” under Proposition 47.1
Note that the California Department of Justice will review and seal all past marijuana convictions that are no longer considered crimes now that recreational marijuana is legal. This process should be done by July 1, 2020. See California Assembly Bill 1793 (2018).
What does a California expungement do?
Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.2
One particular benefit is that an expunged conviction does not need to be disclosed to potential employers.
As it is, California’s ban the box law, AB 1008, bars employers from asking about a job applicant’s criminal record until there is a conditional offer of employment.
But once a conviction has been expunged, it does not have to be disclosed to an employer even after the employer makes a conditional offer of employment.
Who is not eligible for an expungement in California?
People are not eligible for expungement if they:
- are currently charged with a criminal offense,
- are on probation for a criminal offense or
- are serving a sentence for a criminal offense.
A person is also not eligible for expungement if convicted of certain sex crimes involving children.
People who are not eligible for expungement may be able to get relief for their offenses through:
- A Certificate of Rehabilitation and/or California governor’s pardon, or
- Commutation of a California prison sentence.
To help you better understand Penal Code 1203.4 expungements, our California criminal defense lawyers discuss, below:
- 1. California Expungement Law (PC 1203.4)
- 3. Frequently Asked Questions about Penal Code 1203.4 PC Expungements.
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.
An expungement is a form of post-conviction relief authorized by California Penal Code 1203.4 PC. It releases an individual from “all penalties and disabilities” arising out of a conviction.
As Newport Beach criminal defense attorney John Murray3 explains,
“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--something that a PC 1203.4 expungement may allow you to do.”
Expungements are also beneficial for securing or maintaining California professional licenses and for joining many professional organizations. Dismissal of an offense offers a “fresh start” from an otherwise criminal past.
As a basic rule, Penal Code 1203.4 PC authorizes an expungement for a misdemeanor or felony offense provided the applicant:
- successfully completed probation (either felony probation or misdemeanor probation), and
- is not currently:
- charged with a criminal offense,
- on probation for a criminal offense, or
- serving a sentence for a criminal offense.4
The person applying for PC 1203.4 relief must have successfully completed probation in its entirety (or obtained an early termination of probation, discussed below).
What does it mean to “successfully complete probation”?
“Successfully completing probation” means that an individual:
- completed all the terms of his or her probation (that is, paid all fines and restitution, completed any counseling programs, community service, etc.),
- attended all required court appearances (either personally or through an attorney), and
- did not commit any new crimes while on probation.
How does “realignment” affect eligibility under PC 1203.4?
Someone who was sent to California state prison — either at the time of judgment or because of a probation violation — does not generally qualify for a PC 1203.4 expungement.
But there is an exception for people who would have served their sentence in county jail if they had committed the crime after “realignment.” (For more information, please see the discussion on Penal Code 1203.42 in Section 1.4, below).5
As noted above, a conviction can not be expunged if the person who was convicted was sentenced to state prison UNLESS the crime is one for which the person would now be sentenced to jail.
Beyond that, there are also certain felony offenses that can never 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 287 (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 and persons younger than 16.6
It is generally true that an applicant for expungement must have successfully completed all conditions of probation.
But even for an individual who received a probation violation, all hope is not lost. The court will hold a special hearing to determine whether the applicant is nonetheless a good candidate for expungement.7
The court’s discretion to dismiss a conviction
In the wake of a probation violation, the court has wide discretion as to whether to grant or deny a petition for a PC 1203.4 expungement. Factors that the judge may consider include (but are not limited to):
- the applicant’s overall performance while on probation,
- the seriousness of the underlying conviction,
- the applicant’s criminal history, and
- any additional evidence that shows why the applicant is deserving of this relief, such as
- opportunity to obtain a good job,
- support of the applicant’s family,
- strong community ties, etc.
Defendants who were convicted and sentenced to state prison may still be able to expunge a conviction. Eligible applicants are those who would have been sentenced to jail for the crime had it been committed after 2011’s Proposition 47 Realignment legislation.
This exception is found in California Penal Code 1203.42 PC. Relief under Penal Code 1203.42 is not automatic but may be granted by a court, in its discretion. The judge can grant the if he or she believes it would be in the interests of justice.
To qualify under PC 1203.42, the crime must have been one currently punishable in county jail AND:
- at least two years have passed since the defendant completed his or her sentence, and
- the defendant is not:
- under supervised release for a crime,
- serving a sentence for any offense,
- on probation for any offense, or
- charged with the commission of any crime.
How do I obtain an expungement under PC 1203.42?
Defendants need to petition the court in order to be considered for expungement under Penal Code 1203.42. The defendant may make the application:
- in person,
- by an attorney, or
- by a probation officer authorized in writing.
The court may then either:
- Permit the defendant to withdraw his or her plea of guilty or “nolo contendere” (no contest) and enter a plea of not guilty, or,
- If the defendant has been convicted after a plea of not guilty, set aside the verdict of guilty.
In either case, the court will then dismiss the accusations against the defendant. Afterward, the defendant will be released from all penalties and disabilities resulting from the offense to the same extent as a regular expungement under PC 1203.4.
Obtaining an expungement under Penal Code 1203.4 PC involves the following steps:
- analyzing the case to determine whether the defendant is, in fact, eligible for this type of relief,
- performing legal research on the current and relevant law,
- filing the appropriate paperwork within the proper timeframes,8 and
- attending the expungement hearing in the designated court.
Timely filing paperwork is critical. For example, the applicant for expungement must provide the prosecutor with at least 15 days’ notice prior to the hearing. This is to give the prosecutor an opportunity to review the case and object if desired.
There are numerous benefits to obtaining a California expungement. Some of the most significant include:
- An employer may not discriminate against a job applicant based on expunged convictions9;
- Easier to obtain a state professional license;
- Expunged convictions can’t be used to impeach someone’s credibility as a witness in court (unless the individual is the defendant being prosecuted in the subsequent case);10 and
- In some cases, helping avoid certain immigration consequences such as deportation.
Limitations on disclosure of expunged convictions to potential employers
The value of a PC 1203.4 expungement has increased significantly in recent years.
This is because, in the past, a person’s criminal history was unlikely to be discovered by anyone but law enforcement.
But 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 and find a criminal record in moments.
This is where the benefits of an expungement come into play. It is easy now for potential employers to find out about a past criminal conviction.
But legally if a conviction has been expunged, they may not use it to deny employment to a job applicant.
Unfortunately, there are several limitations on what an expungement under California Penal Code 1203.4 PC can do. For example, an expungement will not:
- overturn a driver’s license suspension or revocation,11
- restore California gun rights under Penal Code 29800 PC California’s felon with a firearm law,12 or
- end the duty to register as a California sex offender under Penal Code 290 PC.13
Expunged convictions may also still be used as prior convictions to enhance sentencing. For instance, an expunged DUI conviction still counts as a prior if the person is later arrested for another DUI.
And an expunged conviction that would count as a “strike” for purposes of California’s three-strikes law is still a strike.14
How to obtain the relief an expungement cannot grant
Additional rights can often be restored through alternative avenues of post-conviction relief.
- A California Certificate of Rehabilitation, and/or
- A California Governor’s Pardon15
Someone eligible under PC 1203.4 may petition the court to expunge a conviction on the earlier of:
- completion of probation, or
- early termination of probation (which must be granted by a court).
(Note that an individual who qualifies under PC 1203.42 may only petition the court if at least two years have passed since the completion of his or her sentence).
Can I petition for early termination and expungement at the same time?
Many times, a California criminal defense lawyer can expedite the expungement process by “packaging” a number of motions into one.
The most common example of such packaging includes asking the court in a single proceeding to:
- grant an early termination of probation (which the court has the option of granting as long as the petitioner is in compliance with the terms of his or her 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 a conviction.
Many people who contact us about expungements also wish to “seal and destroy” adult and juvenile criminal records.
Sealing and destroying arrest records per SB 383 is a totally different process from expunging records of criminal convictions under PC 1203.4.
Someone is entitled to have a California arrest record sealed and destroyed if:
- the person was arrested, but the prosecutor never filed criminal charges, or
- the case was dismissed in court, or
- the person was acquitted by a jury following a jury trial, or
- the conviction was overturned and dismissed on appeal, or
- the defendant successfully completed a program of diversion, such as Prop 36 drug diversion or Penal Code 1000 deferred entry of judgment,16
Sealing an arrest record generally allows someone to state that he/she has never been arrested for a crime. This is because in order to seal a record the judge must declare the petitioner factually innocent.
Sealing a juvenile arrest record
Sealing a California juvenile court record provides a petitioner with the same benefits as sealing an adult record. A person may seal a juvenile arrest record if:
- he/she is currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
- as an adult, the person has 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 the motion to seal and destroy a juvenile arrest record it is 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 even if a conviction was expunged under Penal Code 1203.4 PC. Criminal records do not automatically go away after a certain amount of time. If the court doesn’t expunge or seal and destroy the record(s), the conviction(s) will always be a part of someone’s criminal record.
Q. Who can access my criminal record after I get an expungement?
A. Criminal records are “public records.” So anyone can access a criminal record even after a PC 1203.4 expungement — unless the record is sealed. People who often access criminal records includes potential employers, landlords, and licensing agencies.
Q. What happens when I expunge my record?
A. In California, when a record is expunged, a plea of guilty or no-contest (or a conviction after trial) gets set aside by a judge. The applicant then enters a new plea of “not guilty” and the judge dismisses the case.18
Q. How long does it take to expunge my record?
A. Generally, we can have a PC 1203.4 petition filed and heard within one to two months. But this can vary depending on the county in which the petitioner resides. 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, an individual qualifies for an expungement under Penal Code 1203.4 if he or she: (1) committed a felony or misdemeanor and was not incarcerated in the California state prison, (2) fulfilled the terms of his/her probation, and (3) was not convicted of one of the specific crimes that make someone ineligible to receive a California expungement.19 But, to make sure, contact a California criminal defense attorney.
Q. What is “felony reduction”?
A. Someone who was convicted of a “wobbler” (that is, a crime that can be charged as either a felony or misdemeanor), can generally petition to 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 our client’s conviction was for a wobbler, we will petition the court to have the felony reduced to a misdemeanor prior to having it expunged under PC 1203.4. 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. Reducing the felony first 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 an applicant’s 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 the applicant resides, and (2) whether the applicant was 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 the 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 provide our clients with a signed order by a California Superior Court Judge setting aside the conviction and dismissing the 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 PC 1203.4 California expungement. Once the court grants an expungement, a job applicant can legally answer “no” if asked about a criminal record UNLESS:
- The person is applying to become a peace officer or run for public office,
- The person is applying to work for the California Lottery Commission, or
- The person is applying for a 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, they will probably never find out about the conviction. Remember — an applicant no longer has to disclose any conviction unless and until the employer makes a conditional offer of employment.
But even if an employer does conduct a background check, it will show if a conviction was expunged. This will tell the potential employer that a California court has said the applicant is 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 expungement of a conviction under Penal Code 1203.4 PC before they will issue a license.
But even when an expungement is not enough, we may be able to help the applicant obtain a “Certificate of Rehabilitation,” which offers even more benefits.23
Q. What is a “Certificate of Rehabilitation”?
A. A Certificate of Rehabilitation (“COR”) is a court order stating that someone with a criminal past has been rehabilitated.24
The applicant must wait between seven (7) and ten (10) years after being released from custody, depending on the specific offense of which he or she was convicted.25
There are many benefits to a Certificate of Rehabilitation, including:
- A certificate of rehabilitation becomes an automatic application for a Governor’s Pardon;
- An applicant with a COR cannot be denied a state license without other cause;
- A COR sends a message to prospective employers that a job applicant has overcome his or her criminal history and is prepared to make a fresh start.
But remember — an expungement or COR is not necessary for an arrest that did not result in a conviction. Employers (and prospective employers) may not discriminate against a job applicant based simply on arrests. In fact, they aren’t even legally 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
An applicant must usually wait at least ten (10) years after being discharged from probation or parole in order to apply to the governor for a pardon. Or the applicant must obtain a finding of factual innocence (discussed above under section 2. sealing and destroying records).28
But an applicant who receives a Certificate of Rehabilitation may apply for a pardon in as little as seven (7) years after release from custody. This is because a COR acts as an automatic application for a pardon.
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.
Juvenile arrest records
In order to be eligible for sealing a juvenile record, two criteria must be met: (1) The juvenile court jurisdiction must have terminated at least five years ago. (2) The applicant must not have suffered a conviction for a crime of moral turpitude (that is a dishonest or immoral crime) as an adult.29
But even if these two criteria have been met, certain serious crimes cannot be sealed.30
These crimes include murder, robbery and child molestation.
Sealing of records generally
Except as set forth above, sealing an arrest record is generally possible if
- The applicant was arrested and no accusatory pleading was filed,
- The DA dismissed the case, or
- The applicant was found “not guilty” after a California jury trial.31
Also, if the applicant proves that he or she was factually innocent of the charges, the arrest record will be 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. Many times, yes. We are often able to get a non-U.S. citizen’s wobbler felony reduced to a misdemeanor. This makes the non-citizen eligible for permanent residency and ultimately U.S. citizenship. Or we may be able to get a conviction set aside completely.
Once we review the facts and circumstances of an individual’s case, we 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. No. A California Penal Code 1203.4 PC expungement cannot provide this type of relief. But a Certificate of Rehabilitation and Governor’s pardon often can, as long as the conviction was not for a sex crime against a child.33
Interested in a California expungement? We can help…
If you or a loved one is looking to expunge or seal a criminal record in California, we invite you to contact us for a free consultation.
Call us or complete the form on this page to discuss your situation with a knowledgeable California expungement attorney.
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.
¿Habla español? Visite nuestro sitio Web en español sobre el cancellation de antecedentes penales en California.
California Superior Court Expungement Forms:
- California Penal Code 1203.42 PC.
- California Penal Code 1203.4 PC — California expungement law. (“(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.”)
- Newport Beach criminal defense lawyer John Murray represents clients throughout Orange County including Newport Beach, Fullerton, Laguna Beach, Irvine, Santa Ana, Anaheim and Westminster.
- See California Penal Code 1203.4 PC — California expungement law, endnote 2, above.
- See California Penal Code 1203.4 PC — California expungement law, endnote 2, above.
- California Penal Code 1203.4 PC — California expungement law. (“(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 287 [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.”)
- California Penal Code 1203.4 PC — California expungement law, endnote 2, 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.”
- California Penal Code 1203.4 PC — California expungement law. (“(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.”)
- California 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.See also California Code of Regulations 7287.4 — Employee selection.
- California 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.”)
- California 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.”)
- California Penal Code 1203.4 PC — California expungement law. (“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.”)
- California 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.”)
- California Penal Code 1203.4 PC — California expungement law. (“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.”)
- See 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.”)
- California Penal Code 851.8 PC — Sealing and destroying records.
- California Welfare and Institutions Code 781 — Sealing juvenile records.See also California Welfare and Institutions Code 781.5 — Sealing juvenile records.
- See California Penal Code 1203.4 PC — California expungement law, endnote 2, above.
- California Penal Code 1203.4 PC — California expungement law, endnote 2, above.
- California Penal Code 17(b) PC — Felony reductions [may be petitioned for along with expungement].
- California Penal Code 1203.4 PC — California expungement law. (“The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing.”)
- See 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.”)
- California Business and Professions Code 480 — Acts disqualifying applicant.
- California Penal Code 4852.16 PC — Pardon; certificate as application; issuance; recommendation.
- California Penal Code 4852.03 PC — Period of rehabilitation; determination of period.
- See endnotes 9, 23 and 24 above.
- California 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.
- How 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.”)
- See endnote 16, above.
- California Welfare and Institutions Code 781, endnote 17, above.
- See endnote 16, above.
- See same.
- California Penal Code 290.5 PC — Pardon or certificate of rehabilitation; relief from duty to register.