For too many people, a criminal record is embarrassing. Worse yet, a criminal record is usually seen as a reflection of the person you were or a thing you did once, not the person you are today and certainly not something you would ever do again. Even years later, a criminal record can negatively affect professional advancement or employment altogether, as well as adoption, professional licensing, and certain types of loans. Whether you were actually convicted or just arrested and released, you may be eligible to have your record modified or erased completely. You may qualify for relief under California law that allows you to enjoy the fresh start you deserve.
Whether you are seeking to withdraw a guilty plea and have the case dismissed, what most people refer to as “expungement,” or you want to have your arrest record sealed and destroyed, it’s important to make the right choice if you are going to have an expungement attorney help you.
Clear My Records has an abundance of knowledge and experience with California record clearing laws and will help you find the eligible relief you need to put your past criminal record behind and start new wherever you are in California.
California Record Clearing Laws Overview
People with a criminal record in California can file a petition in court to clear the record in numerous ways depending on the type of conviction or arrest offense. Under California expungement law, a person can petition to have a conviction reversed and the case dismissed.
There are two basic ways to clear an adult crime-related record, sealing of an arrest record and “expungement” of a conviction.
Here is an overview of California record clearing laws:
California Penal Code §1203.4 Basically
One of California’s record clearing laws is set forth under California Penal Code (PC) §1203.4. Under this penal code section, a defendant with a criminal case can file a request for “expungement” (relief through PC §1203.4) with the sentencing court after successfully concluding his or her probation. It is very important to understand that relief under PC §1203.4, while most commonly called “expungement,” is not truly expungement. Rather, it is a legal mechanism by which a guilty plea is withdrawn and replaced by a plea of not-guilty, followed by the court granting a dismissal of the case altogether.
If the court grants the defendant an “expungement” under PC §1203.4, it will become legally true for the defendant to declare on an application for private employment that he or she was not arrested or convicted in that case. However, for public employment, professional licenses, and public office, the defendant will still be required to disclose the conviction, although the record will show that the case was ultimately dismissed.
Penal Code §1203.4 is the foundational law of expungement in California, which creates the eligibility rules for criminal record clearing.
More Detail about Relief Under §PC 1203.4
According to California PC §1203.4(a)(1), where the defendant has fulfilled the conditions of the probation ordered by the court at sentencing for the entire period of probation, or the probation was terminated early, or where the Court believes, in its discretion, that the interests of justice would be served by granting relief, the defendant will be permitted by the Court to withdraw his or her plea of guilty or no contest and enter, instead, a plea of not guilty and the Court will dismiss the case.
However, there are rules. For example, the Court will not grant relief under PC §1203.4 if the defendant is currently charged with another crime, on probation in another case or, worse, if the defendant is serving out a sentence on another case.
The language of PC §1203.4 goes on to say that, once relief is granted, the defendant shall “…thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…” however, that is a bit misleading. In reality, even after relief under PC §1203.4 is granted and the case “dismissed,” the defendant remains subject to the driver license revocation or suspension consequences that arise from §13555 of the Vehicle Code.
What Relief Under PC 1203.4 is Not
Relief under PC §1203.4 is NOT a Pardon or a Restoration of Rights
Relief granted under PC §1203.4 does NOT constitute a certificate of rehabilitation, nor is it a pardon.
PC §1203.4(a)(2) specifically states that relief “…does not permit a person to own, possess, or have in his or her custody or control any firearm…” if the conviction carries with it a firearms restriction.
PC §1203.4(a)(3) expressly dictates that relief “…does not permit a person prohibited from holding public office as a result of that conviction to hold public office.”
Not Everyone is Eligible
PC §1203.4(b) spells out the exclusions; those who are not eligible for relief. Charges that are specifically NOT eligible for relief under PC 1203.4 include, but are not limited to, cases that resulted in a term of state prison that was not modified by Prop 47, and most crimes that could have (or did) result in sex offender registration.
Who is Eligible?
Any defendant with a California non-excluded misdemeanor or felony case can petition the court for expungement as long as the following conditions are met:
- The defendant has completed the court set probation period successfully without violating any probation rule or requirement
- The defendant was not sentenced to state prison, unless the defendant had a state prison sentence but would otherwise have served time in county jail if the offense was committed after enacting the “realignment” as per California proposition 47 for resentencing.
When relief under PC §1203.4 has been granted, the defendant is no longer required to disclose the conviction to a potential private employer. However, as stated, if the defendant is applying for public employment, such as police or fire or other public service, he or she will be required to disclose and explain the conviction. The same is true for professional license applications, a position with the state lottery commission, and when running for public office.
Find out whether you are eligible for relief under PC §1203.4 by contacting an attorney familiar with the “expungement” process.
Early Termination of Probation
California Penal Code §1203.3
Under California penal code §1203.3, a person can file a motion with the court to request early termination of probation under certain conditions. Suppose the defendant has served half of a misdemeanor or felony probation sentence, upon a showing of “…good cause…” or “…the interest of justice…” the judge can terminate the probation at any time.
A judge has the right, and will be more compelled, to grant a defendant an early termination of the probation if the defendant has undergone some rehabilitation or counseling; has demonstrated contrition and remorse. The defendant and his or her lawyer carry the burden of proving to both the judge, and to a certain degree, the prosecutor, why early termination of your probation is appropriate. Lost job opportunities, documented travel restrictions, and licensure denials are among the factors upon which a court might make a finding of good cause to grant an early termination of probation.
According to Penal Code §1203.3, upon request, the judge has the right to terminate probation early if the defendant has reformed and successfully satisfied the terms and condition of the probation sentence such as:
- Paying reimbursement to the victim
- Completion of counseling
- Successful completion of the community service
- Paying fines
- Completion of court-ordered classes, for instance, DUI school or domestic violence classes.
- The defendant has not picked up other criminal charge currently.
- The defendant is not on probation for any other crime.
- You’re not currently serving a sentence for a different crime.
Assembly Bill 2582
After the implementation of Assembly Bill 2582 (AB2582) law in 2011, individuals with certain – but not all – infraction offenses can apply for relief under penal code §1203.4.
Application for dismissal or termination of an infraction record, begins with the filing of a written declaration, after which the court will review the request. The court will not expunge your infraction record unless you have served the prosecuting attorney a prior notice of the petition for infraction dismissal as required under AB2582. A record clearing attorney can help you with the guidelines for sealing an eligible infraction offense.
California Penal Code 17b
Some crimes can be charged by prosecutors as either a felony or a misdemeanor. Such cases are most commonly referred to as “wobblers” because they can “wobble” between the two charging levels. California’s penal code §17b creates the mechanism by which a defendant can file a motion in court requesting a reduction of a felony offense to a misdemeanor after a conviction in “wobbler” cases.
It is entirely up to the prosecutor in California whether to charge a wobbler offense as either a misdemeanor or a felony, depending on the defendant’s criminal history and the nature of the offense. California wobbler offenses which are capable of reduction from a felony to a misdemeanor include (but not limited to) specific:
- Theft charges
- Fraud charges
- Criminal threats
- Domestic battery
- And certain sex offenses
Fortunately, an expungement attorney can help you reduce the felony charge on your criminal record to a misdemeanor, which is a less severe charge in contrast to a felony charge.
The following are just a few examples of benefits that come with the reduction of a felony offense to a misdemeanor:
- You can confidently (and legally) say that you’ve never had a felony conviction especially during a private employment application
- You may be able to maintain or obtain new professional licenses
- Some defendants may be eligible to restore gun ownership rights in California
Having a felony conviction affects a person's reputation in society. Also, it affects his/her chances of securing or advancing in a job. That is why most people seek to reduce these charges to a misdemeanor to preserve certain legal rights and requirements for California record sealing or expungement.
California Penal Code §4852.01
There are many ways a person can modify a criminal record in California, and an application for a certificate of rehabilitation is one valuable way for defendants who were sentenced (and sent) to state prison.
California penal code §4852.01 defines the process and eligibility standards for the application of a certificate of rehabilitation. Certificate of Rehabilitation (CoR) is a court order that provides relief to convicts who have successfully demonstrated rehabilitation. The order tells society that the applicant is now reformed and a law-abiding citizen.
When the CoR is granted, the case is automatically submitted for consideration by the Governor of California for the granting of a Pardon. A Governor’s pardon, although very rare, is the ultimate termination of a criminal record. A full pardon relieves eligible applicants of the punishments and life-long consequences resulting from a criminal sentence or conviction, including gun ownership.
According to California penal code §4852.1, a person is eligible for a California certificate of rehabilitation if:
- He/she has not been under imprisonment since the dismissal of his/her sentence.
- He/she must have been residing in California for the last five years immediately before filing a petition for a certificate of rehabilitation.
- He/she has satisfied the court-ordered rehabilitation minimum period for his/her specific offense following his/her release from probation, custody.
- He/she is not on probation for any felony offense.
Although a certificate of rehabilitation does not erase an applicant's criminal record, it does show that the recipient is now a law-abiding citizen after rehabilitation, meaning that he/she can pursue his/her professional goals.
Certain people with a particular conviction history are ineligible to apply for a CoR, for instance, people with specific types of sex crime convictions such as child molestation against California penal code §288. To know if you’re eligible for the application of a certificate of rehabilitation, you should contact an expungement attorney for legal guidance.
California Penal Code §851.8
Not every arrest results in a conviction. Some arrests do result in convictions only to be overturned later because the defendant was factually innocent.
California penal code §851.8 outlines the procedures and the process of filing a petition for a certificate of factual innocence. Any kind of criminal charge or arrest can affect a person’s ability to accomplish life goals, especially when seeking employment. When police arrest you without reasonable cause, you can submit a request for a finding of factual innocence with the law enforcement agency that arrested you. When submitting your request for a certificate of factual innocence, you need to prepare relevant evidence to prove the arrest is unreasonable due to a lack of facts. Here are examples of relevant pieces of evidence you should consider preparing ahead of time before filing a request for a certificate of factual innocence:
- Eyewitness testimony
- Surveillance videos
After demonstrating factual innocence of the arrest above a reasonable doubt, it’s upon the prosecutor to show the judge that the arrest was unreasonable hence the need to grant the applicant a certificate of factual innocence. A person has a maximum of two years since the time of arrest or detainment to file a request for a certificate of factual innocence. Under California penal code 851.8, if a judge grants the defendant a certificate of factual innocence, the department of justice and the police must seal and destroy the defendant’s arrest record.
Penal Code §851.91
This one is our favorite! People get arrested without reasonable cause all the time only to have a prosecuting agency reject a criminal filing. While it is great that no criminal charges were filed, the arrest record sticks with you.
Under Penal Code §851.91(a) where a suspect was arrested by police, but the arrest did not result in a conviction, he or she may petition the court to have the arrest and related records sealed and later destroyed.
To be eligible for relief under Penal Code §851.91, the statute of limitations must have run out for each offense upon which the arrest was based without a filing of charges by the appropriate prosecuting agency. For misdemeanor offenses, that is one year. For felony offenses, the statute of limitations can be as short as three years and as long as forever. Your record clearing attorney will be able to tell you what the statute of limitations is for your arrest.
In cases where the prosecuting agency did file formal charges, but there was no conviction because all of the charges were dismissed and the charge may not be refiled, relief under Penal Code §851.91 may be available. The same is true when the defendant is acquitted of all charges.
Of course, not everyone is eligible. For starters, you are not eligible for relief under Penal Code §851.91 if charges based on the arrest may still be brought or there is no statute of limitations, as is the case for murder – that one will follow you forever unless you are acquitted or found to be factually innocent.
You are also not eligible for relief under Penal Code §851.91 if you have intentionally evaded law enforcement or other efforts to prosecute the arrest. Of course, whether you “evaded” may be a matter to be argued by your lawyer.
If the court grants relief under Penal Code §851.91, it will provide the report to the Department of Justice (DOJ), letting them know, officially, that relief has been granted. The court will also issue a formal written ruling and order to you, to the prosecuting attorney, and to the law enforcement agency that made the arrest. The order will direct that the record of arrest is to be (has been) sealed and, more importantly, the arrest is deemed not to have occurred. However, if you face another criminal charge, regardless of whether it is similar or different, the sealed arrest may be used against you. Also, relief under Penal Code §851.91 does not relieve you of the obligation to disclose the arrest, if otherwise required by law, when applying for “…public office, for employment as a peace officer, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”
California Penal Code §1000
People charged with specific types of drug-related crimes can earn a dismissal of criminal charges through a pretrial diversion program rather than serving a sentence in custody, thanks to according to California penal code §1000 – most just refer to it as “PC-One-Thousand.”
Defendants charged with simple, non-violent drug crimes, such as possession of controlled drug substances for personal use, can take advantage of this pretrial diversion program. The substance found in your possession must be for personal use only. Charges for transportation, sales, or distribution of controlled substances will render a defendant ineligible for the pretrial diversion program.
Similar relief may be available through California Penal Code §1210.1, which resulted from and is commonly referred to as “Prop 36.”
Whether the defendant employs “PC-One-Thousand” or “Prop 36,” after completing the court-approved rehabilitation/treatment program, the court will dismiss and seal the defendant's criminal charges and it will be as if it never happened.
Welfare and Institutions Code §781
If you, or your son or daughter, have a juvenile criminal record in California, under welfare and institutions code §781, you might be able to get the juvenile record sealed. If the court orders that the juvenile record be sealed, the entire case “…shall be deemed never to have occurred…” making it legally true (in almost all circumstances) to say the case never happened.
Welfare and institution code §781 outlines guidelines and eligibility standards for application of juvenile record sealing. The court will consider sealing a juvenile criminal record under welfare and institution code §781, when:
- The juvenile has reached eighteen years old or its been at least five years since the termination of the juvenile court jurisdiction;
- The court must be satisfied that the juvenile is rehabilitated and reformed, that is to say you are no longer a danger or threat to the community;
- The juvenile does not have any subsequent convictions for crimes of “moral turpitude” in California.
For cases where the juvenile was required to register under PC §290 (sex offender), the court “…shall…” also order that the person is no longer required to register, and that all registration information (in possession of the Department of Justice and other agencies, entities, and officials) be destroyed. When it comes to employment or college admissions, or just regular life, this provision may be the most beneficial of all.
When the juvenile case related to an offense listed in W&I §707(b) and was committed when the juvenile was at least 14 years old, the rules are a little different. If the juvenile was made a ward of the court because of an offense listed in W&I §707(b) and was committed when the juvenile was at least 14 years old, the petition to seal the juvenile record will only be considered by the court when:
- The juvenile was committed to what is now called the Division of Juvenile Justice (DJJ) (formerly the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities)
- The juvenile has reached the age of 21 years old
- The juvenile has completed the specified period of probation after release from DJJ.
If the juvenile was made a ward of the court because of an offense listed in W&I §707(b) and was committed when the juvenile was at least 14 years old, but the juvenile was not sent to DJJ, the petition to seal the juvenile record will only be considered by the court when:
- The juvenile has reached the age of 18 years old, and
- The juvenile has completed the specified period of probation.
Welfare and Institutions Code §1772
Welfare and Institution code §1772 statute sets the eligibility standards and rules for setting aside a juvenile criminal record charge under Welfare and Institution Code §781. When a juvenile criminal record case is set aside after a petition, the defendant is relieved from all the penalties and consequences arising from the crime or offense.
When the juvenile court sets aside the prior judgment of a juvenile case after petitioning under California welfare and institution code §1772, the petitioner’s record will become sealed and destroyed.
Contact a Record Clearing Attorney Near Me
The success of any attempt to have a record sealed or expunged begins with your expungement attorney’s skills and knowledge of California record clearing laws. We invite you to contact Clear My Records to learn about cleaning up the past criminal mistakes that continue to affect your reputation, employment, and overall ability to progress in life. Our experienced expungement lawyers are ready to get on your case immediately.