Before you begin the dismissal process for your case, you should understand what expungement means, how it benefits you and the limitations that apply.
What does expungement mean?
California law provides a legal process to remove or reduce a person’s criminal convictions for certain offenses. According to Penal Code 1203.4, this process removes “all penalties and disabilities” associated with the conviction.
Under Penal Code 1203.4 PC, people with convictions for certain felonies or misdemeanors, and who meet additional sentencing and/or probation requirements (described later on this page) may be able to have their convictions expunged. If your petition is successful, the Court will re-open your case and set aside your guilty plea (or a jury’s guilty verdict) and dismiss the State’s case against you.
Expungement does not completely remove all traces of the conviction from your criminal record. Instead, it alters your record to show that the Court dismissed the criminal complaint “in the interests of justice.”
The benefits of expungement
With a dismissal, you do not have to disclose your conviction when applying for a job or housing. California law prohibits private employers from discriminating against employees or prospective employees who have their convictions expunged.
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A dismissal can also help you if you apply for employment with a governmental agency or department. State law also requires public-sector employers to treat you as though your conviction never occurred.
Having a clean criminal history may also help you secure professional licensure or other employment-related credentials.
Finally, for non-citizens, a clean criminal record may help you avoid deportation, or other immigration consequences that may arise from a criminal conviction.
If you are considering applying for an expungement of an existing conviction, contact an experienced criminal defense attorney for assistance. You can also review the laws and rules regarding expungement by reading Penal Code 1203.4 or the California Code of Regulations 11017.1.
Know the limitations of expungement
A successful petition for expungement doesn’t mean that all traces of your criminal history disappear from your record. Many of your civil rights will remain affected.
For example, expungement does not restore your right to own or possess a firearm. For the purposes of firearm possession, the restrictions of the State’s “felon with a firearm” law (Penal Code 29800 PC) will still apply to you.
Further, expungement will not return your unrestricted driving privileges, if those restrictions were part of your sentence. Other sanctions, like not being able to hold public office, or having to register as a sex offender will remain firmly in place.
Additionally, the Court can still consider your entire criminal history when sentencing you for future crimes. In the case of the State’s “Three Strikes Law” an expunged felony conviction could still count as a “strike” against you.
State law does provide some other remedies to resolve some of these issues. For example, a certificate of rehabilitation, a Governor’s pardon or a petition to reduce a felony to a misdemeanor may restore certain rights, including firearm possession. These alternatives are discussed in more detail later in this piece.
Know your case
Penal Code 1203.4 has some very specific exclusions that limit a person’s ability to take advantage of this process. More than anything else, the exact circumstances of your case will determine whether or not you can seek expungement. Before you attempt this process, it helps to know the details of your case. You can begin to see whether or not expungement may work for you. Not everyone is a legal expert, so your attorney can help you determine whether you can seek to have the Court reconsider your case.
Step 1. Get copies of your criminal records
At the time of your conviction, you received papers that included all of the relevant information about your case.
Your attorney, parole officer, probation officer and even the Superior Court that convicted you can help you obtain copies of your records. In addition, you can receive copies of your criminal records through the State Attorney General’s Office or the California State Department of Justice Criminal Record Review Unit.
Not all criminal records are free. For example, The California State Department of Justice Criminal Record Review Unit charges a $25 fee, but if you have a limited income and can provide proof, the Department may grant a waiver. The process of obtaining your records isn’t immediate, either. It may take several weeks for the various agencies to mail paper copies of your records to you.
Step 2: Determine your eligibility for expungement
If you meet all of the following criteria, you are likely to be eligible to ask the Court to expunge your record:
- You have a felony or misdemeanor conviction
- You are not currently facing any new criminal charges
- You are not actively serving a sentence for a criminal conviction
- You did NOT serve your sentence in a California state prison
- You have successfully completed your probation or obtained an early probation termination
- You do not have any unpaid, court-ordered fines
- You have completed all elements of your sentence, including community service, restitution, classwork or other programs
- You were charged and convicted in a California Superior Court (not a federal court)
- It has been at least one year since your conviction, if you did not receive probation
If you don’t meet one or more of the criteria listed above, the Court still has some discretion to expunge your record, if:
- You did not fulfill all of the probation requirements, but you have:
- Paid all restitution
- Are not currently charged with another offense
- Are not serving a sentence with another offense
- You were convicted of a misdemeanor for solicitation/prostitution and you:
- Have successfully completed probation, or
- Can show that your action was the result of human trafficking in which you were the victim
- If you were convicted of a felony, you:
- Were sentenced to serve your time in a County Jail, and
- You completed your sentence at least two years ago.
- You served in a branch of the United States armed forces and suffered mental health or other trauma/injury-related problems that resulted from your service
To be expunged, a felony conviction must first be reduced to a misdemeanor. Not all felony offenses qualify for expungement. Actions that could have been charged as either a felony or a misdemeanor – sometimes called “wobblers” – qualify for expungement.
You are NOT likely to be eligible to have your conviction expunged if any of the following conditions apply to you.
- You were convicted in federal court
- You served your time in a California state prison
- You are still on probation or cannot have your probation terminated early
- You are currently charged with, serving time for, or on probation for another criminal offense
- Your conviction includes certain sexual offenses that involved child victims
Other convictions under specific sections of the Penal Code may also affect your eligibility to seek expungement. If you are not certain whether you do or do not qualify, consult with an experienced criminal defense attorney about the specifics of your case.
Step 3: All of your convictions are important. Know the details of each one
If you have multiple criminal convictions, collect the details listed below for each one.
- Case (docket) number
- Whether there was a verdict
- Whether you pleaded guilty or no contest
- The sentencing details
- Were you sentenced to serve time?
- Which jail or prison did you serve time in?
- What was the date of your release?
- Were you released on parole? If so,
- When was your parole complete?
Step 4: Know Your Probation Status
If you were never on probation, or have successfully completed your probation, you are probably qualified for expungement.
If you are still on probation, you cannot apply for expungement until your probation is terminated. Only a Court can terminate your probation, and the Court will only consider this step if you file a petition asking to end your probation early. The decision to terminate your probation is entirely up to the Court. When you petition the Court to terminate your probation, the Court will schedule a hearing to consider the following:
- Your conviction
- The seriousness of the crime you committed
- Your overall criminal history
- Your employability if your probation is terminated
- Why you may deserve to have your probation terminated
- Your behavior while on probation
- The people who rely on you for support
- Your ties to the community
- Any volunteer work you have done while on probation
Violating the terms of your probation does not automatically exclude you from consideration for early termination. You may still petition the Court for consideration and you can still receive a hearing to evaluate your probation status.
The filing process
Now that you understand the benefits, eligibility requirements and limits of expungement, you can take the next step toward petitioning the Court to consider your expungement request.
Step 1: Get an experienced attorney
People who choose to have an attorney represent them in Court have a much higher chance of succeeding in getting their convictions expunged. Further, a highly qualified attorney can help you complete all of the necessary steps and forms in the application process.
Step 2: Get and complete the necessary forms
If you want to have a misdemeanor conviction expunged and you have successfully completed your probation, you will need to complete and file a Petition to Dismiss a Misdemeanor PC 1203.4. Your local courthouse may already have a form available for this. If no form is available, you can write your own petition with the help of an attorney. You will need to submit separate petitions for each conviction you want the Court to consider for dismissal.
If you want to have a felony conviction expunged, you must first ask the Court to reduce your felony conviction to a misdemeanor. Felony charges that are eligible for this treatment are those that the Prosecutor could have charged as a misdemeanor but did not. The Court usually grants this type of petition. Once your charge has been reduced to a misdemeanor, then you can proceed with your Petition to Dismiss a Misdemeanor PC 1203.4.
You can petition the Court to reduce other felony convictions, using PC § 17(b)(3). Your local courthouse will likely have a form available. If not, you and your attorney can draft your own petition. If the Court grants your petition to reduce your conviction to a misdemeanor, then you can proceed with your Petition to Dismiss a Misdemeanor PC 1203.4.
If you have not yet completed your probation, you must first persuade the Court to terminate your probation. You do this by filing a Motion to Terminate Probation. If the Court denies your Motion to Terminate Probation, you can file a Petition for Dismissal. Your attorney can help you either fill out the form or write a motion to file in Court.
You can include documentation to your petitions when you submit them to the Court. This could include character references, proof that you completed the terms of your sentence or records of volunteer work. This kind of documentation can help persuade the Court to grant your motion.
Step 3: File for expungement
Once your paperwork is complete, you can file your petition and documentation with the courthouse at which you were convicted. The Court will hear your case in the order in which it receives your completed paperwork. Typically, the process to consider your motion will take 4-5 months.
If you need to file a petition to terminate your probation, or to reduce a felony to a misdemeanor, you will need to mail your petition to the Clerk of the Court or deliver your petition in person. Some counties require you to serve your petition to either the District Attorney or the Probation Department.
You must also pay a filing fee when you submit your petition. The filing fees vary by county, and may also differ based on whether the conviction is a felony or misdemeanor. The County Court’s website will have a fee schedule posted. If you cannot pay the fee, the County can make financial assistance available to you.
The Court will set a date when it receives your completed petition.
Step 4: Prepare for your hearing by meeting with your attorney
You may or may not need to be present in Court for your expungement hearing. Your attorney can help you prepare and let you know whether you’ll need to appear in Court.
If you need to be present, note that the District Attorney’s Office can raise objections to your petition. You’ll need to be prepared to defend your request. Evidence that supports your request and prepared statements can help you persuade the Court to grant your petition. You’ll want to bring copies of your evidence and any statements you make to Court with you.
Step 5: Your court hearing
Only the judge will consider your petition. Juries do not decide expungement cases.
Expungement hearings are typically short, only about 10 minutes. It’s important to be on time for your hearing and to behave appropriately in court. During the hearing, the judge will consider:
- The charges against you
- The status of your parole
- Your history of additional convictions
- Your ability to work and keep a job
- Your community service
- Your other ties to the community
Step 6: What happens next
If the Court grants your petition:
The California Superior Court Judge who signed your expungement order will send you a copy of the dismissal of your case.
Your court record is still visible unless you request that the Court seal your record.
If you receive a signed order from the judge, you no longer have to answer “yes” to questions regarding criminal records or felony convictions. Exceptions to this include running for public office, applying for a state licenses, or taking a job with the California Lottery Commission. In those cases, you must still disclose your conviction history.
If the Court denies your petition:
You may ask the judge to explain why your petition was denied, and what you can do to have your petition accepted. You may refile a petition six months after your previous petition was denied, provided that you have made the necessary or recommended changes. If the Court denied your petition because the judge found that you are not eligible to have your record expunged, you may still have a few options to mitigate the impact of a criminal conviction.
What you can do when you can’t expunge your record
If you can’t have your record expunged, you may still be eligible to take the following steps:
Option 1: Seal or destroy your records
You may be able to have the records of your case sealed and/or destroyed, if:
- You were wrongly arrested but not convicted of a crime
- You were arrested but never charged
- Your case was dismissed in Court
- You were acquitted by a jury
You can also seek to seal records from a Juvenile Court case if:
- Your case is at least five years old
- You have not been convicted of any “moral turpitude” cases as an adult
- There is no pending civil litigation against you arising from your case
Having your records sealed or destroyed eliminates police reports, arrest records and other documentation that describes your case. To have your records sealed or destroyed, you must get a Certificate of Factual Innocence. Typically, you will encounter resistance to a petition to seal or destroy records. If this option is open to you, you should strongly consider exercising it only with the assistance of an experienced attorney.
Option 2: Obtain a Certificate of Rehabilitation
A Certificate of Rehabilitation is a form of direct pardon.
Unlike an expungement, a direct pardon can restore your civil rights. A Certificate of Rehabilitation may be granted 7 years after you complete probation or parole. This is three years sooner than you can seek a direct pardon. The Governor issues direct pardons, but a Superior Court issues Certificates of Rehabilitation.
A Certificate of Rehabilitation does not seal or destroy your records, and it does not change the status of your conviction. You will still have to answer “yes” when asked about criminal convictions.
On the other hand, a Certificate of Rehabilitation may allow you to:
- Serve on a jury
- Own or possess a firearm
If you have been convicted of certain sexual offenses, a Certificate of Rehabilitation may allow you to eliminate the requirement that you register as a sex offender.
You must meet the following criteria to be considered for a Certificate of Rehabilitation:
- You have been convicted of a felony and served time in a California state prison, or you have been convicted of a felony or a misdemeanor violation of a sex offense outlined in Penal Code section 290 which has been dismissed AND you have not been incarcerated following the dismissal
- You have been a California resident for at least 5 years
You cannot receive a Certificate of Rehabilitation if:
- You received a death sentence
- You are on mandatory life parole
- You are serving in the military
Option 3: Seek a direct pardon from the governor
A direct pardon eliminates the penalties associated with your conviction and restores certain rights. You will receive the same benefits from a direct pardon from the Governor that you would receive if you obtained a Certificate of Rehabilitation.
If you are not eligible to seek a Certificate of Rehabilitation or you no longer live in the State of California, you can seek a direct pardon.
As with a Certificate of Rehabilitation, a direct pardon does not expunge your conviction or seal your records. Further, you must wait at least 10 years after the completion of your sentence (including parole or probation) to seek a direct pardon.
To seek a direct pardon, you must file an Application for Gubernatorial Pardon. You can download this form from the Governor’s Office website. Once you have completed the form, you can return it to the Governor’s Office for consideration.