If you were convicted of a felony or misdemeanor and were not sentenced to time in state prison, you may be able to take advantage of a California state penal code that will allow you to have your case dismissed. A dismissal (also known as “expungement”) has many benefits and, if you are eligible, may help you to find the fresh start you are looking for. Follow the step-by-step guide below to determine if you are eligible and how to go about the expungement process.
Before you begin the legal process
Before you begin the process of filing for dismissal of your case, it is important to understand what expungement is, its benefits, and its limitations.
What is expungement?
In the state of California, expungement is a legal procedure that removes or diminishes certain offenses.
Under Penal Code 1203.4 PC, defendants who have been convicted of felonies or misdemeanors who meet the prison sentencing and probation requirements (described in more detail below) may be eligible to have their records expunged. If you have your conviction expunged, your case will be reopened and your guilty plea or guilty verdict will be set aside and the case will be dismissed.
According to Penal Code 1203.4 PC, expungement releases the defendant from “all penalties and disabilities” incurred by the conviction.
Although, in California, a criminal record cannot be fully erased from public view, expungement will alter your record to read “dismissed in the interests of justice.”
What can expungement do for you?
You will no longer be required to disclose your conviction when applying for a private-sector job. This can be extremely helpful in securing employment. Additionally, it is against California law for an employer to discriminate against an employee or prospective employee based on expunged convictions.
Expungement may assist you in applying for and securing government employment. As with private-sector employers, government employers will be required to treat applicants with dismissed convictions as though they have not had any convictions.
Expungement may assist you in joining professional organizations or acquiring professional licensure.
You may be able to avoid deportation and other consequences related to immigration.
For further information regarding your employment rights after expungement, contact your attorney or read Penal Code 1203.4 or California Code of Regulations 11017.1
Understand the limitations
Having your records expunged does not mean that they will be erased from public view.
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Under California’s felon with a firearm law (Penal Code 29800 PC), expungement will not restore your right to own or possess a firearm. Your conviction may still affect your driving privileges. If your conviction affected your right to hold public office, expungement will not restore that right. If you are required to register as a sex offender, an expungement will not relieve you of that requirement and your status as a registered sex offender will remain available to the public.
Even if your convictions are dismissed, they may still be used against you in the sentencing of future crimes or may be counted as “strikes” under the three strikes law.
Some of the limitations of expungement may be resolved through other legal means including a certificate of rehabilitation or Governor’s pardon. It may also be possible to have a felony reduced to a misdemeanor, which may restore your firearm rights. These alternative strategies will be discussed in more detail below.
Become familiar with your case
Not everyone who has been convicted of a felony or misdemeanor is eligible for a dismissal. Additionally, there may be details of your case that change the circumstances of your filing process. Before you begin the process of actually filing for dismissal, you will want to become familiar with the details of your specific case and determine whether or not you think you are eligible to have your record expunged. Your attorney can assist you in following these steps:
Step 1: Order and obtain copies of your criminal records
All of the relevant information needed should be included in the court papers you received at the time of your conviction.
Additional copies of your records can be obtained from your attorney, your parole or probation officer, or the superior court where you were convicted. You may also obtain a copy of your records by visiting the California Office of Attorney General website or the California State Dept. of Justice Criminal Record Review Unit.
You may be charged a fee to obtain your records. The California State Dept. of Justice Criminal Record Review Unit charges a $25 fee, but you may be able to qualify for a fee waiver by providing proof of income. Keep in mind that it may take up to several weeks for ordered records and papers to arrive in the mail.
Step 2: Find out if you are eligible for expungement
You are most likely to be entitled to expunge your records if you meet the following criteria:
- You have been convicted of a felony or misdemeanor
- You are not currently facing any criminal charges
- You are not currently serving a sentence for a criminal offense
- You did not serve time in a California state prison
- You have either successfully completed your probation or obtained an early termination of probation
- You do not have any outstanding court-ordered fines
- You have completed your sentence and all of its requirements (including community service or other programs)
- You were charged and convicted in state court, not in federal court
- If you did not receive probation, it has been at least 1 year since your conviction
- You may still be eligible but the court has the discretion to expunge your records if you meet the following criteria:
- You did not fulfill all of the probation requirements but you have paid all restitution and are not currently charged with or serving a sentence for another offense
- You were convicted of a misdemeanor for solicitation/prostitution and have successfully completed probation or can show that your conviction
- was the result of human trafficking in which you were a victim
- If you were convicted of a felony, sentenced to county jail and it has been at least 2 years since you completed your sentence
- You were a member of the United States military and suffered mental heath or other trauma/injury-related problems as a result of your service
- In order to have a felony expunged, it must first be reduced to a misdemeanor.
Felonies that qualify for expungement are those which could have otherwise been charged as misdemeanors, (these types of charges are often referred to as “wobblers”) or which are able to be reduced.
You may NOT be eligible to have your records expunged if you meet any of the following criteria:
- You were convicted in a federal court
- You were sentenced to time in a California state prison
- You are still on probation and are unable to have your probation terminated early
- You are currently charges with, serving a sentence for, or on probation for another criminal offense
- You were convicted of certain sex offenses that involve children
Convictions of violations under some specific Penal Codes may affect your eligibility. If you are unsure about your eligibility, consult your attorney.
Step 3: Know the details of your convictions
If you have multiple convictions, you need to know the following details for each one:
- The case number (aka “docket number”)
- If there was a verdict
- If you entered a plea and what plea was entered “guilty” or “no contest”
- The details of sentencing: were you sentenced to serve time in a prison and which one? What was the date of your release? Were you released on
- parole and what was the end date of your parole?
Step 4: Know the status of your probation
If you were never on probation or have successfully completed your probation, you are qualified for expungement.
If you are still on probation, you must have your probation terminated before you can apply for expungement. In order to have your probation terminated, you must petition the court. Termination of probation is up to the discretion of the court. A hearing will be held consider the following issues:
- Your convictions and their degrees of seriousness
- Your criminal record
- Your ability to get a job if your probation is terminated
- Why you might be deserving of having your probation terminated including your behavior while on probation
- People who are supported by you, your ties to your community, and any volunteer work you have done
If you have violated the terms of your probation, you may still apply for expungement and can still attend a hearing to determine whether your probation will be terminated.
The process of filing for expungement
Now that you understand what expungement is, what it can do for you, and whether or not you think you might be eligible, you are ready to take the necessary steps toward applying. Below is a list of the steps you will need to take in order to file:
Step 1: Seek legal counsel
You are likely to have much greater success throughout the expungement process if you are represented by an attorney.
A qualified attorney who is knowledgeable about California criminal law can assist you in completing all of the necessary requirements of your application.
Step 2: Obtain and complete forms
First, you will need to determine which forms you will need. If you are looking to expunge a misdemeanor charge and have successfully completed your probation, you need to file a Petition to Dismiss a Misdemeanor, PC 1203.4
If you have not yet successfully completed your probation, you will need to file a Motion to Terminate Probation.
If your Motion to Terminate Probation is denied, you will need to file a Petition for Dismissal.
The Petition for Dismissal is likely to be available at your courthouse. If the form is not available, you can write your own petition with the help of your attorney. If you are looking to expunge a felony, the felony must first be reduced to a misdemeanor.
“Wobbler” charges (charges that could have been charged as misdemeanors) can be reduced by petitioning the court and this request is usually granted.
For other felonies, you will need to file a form under PC § 17(b)(3) to have the felony reduced. This form is likely to be available at your courthouse. If the form is not available, you can draft your own with the help of your attorney.
Once your felony has been reduced to a misdemeanor, you may file a Petition to Dismiss a Misdemeanor, PC 1203.4. Forms can be obtained at the court or downloaded from their website.
You will need one copy of each form for each conviction.
Ask the court or your attorney if you will need to submit additional photocopies of the forms. You will be able to attach documents to the forms when you submit them to the court. Documents such as character references and written proof of the completion of your community service can help to strengthen your petition.
Step 3: File for expungement
Once you have completed all of the necessary paperwork for your case, you may file for expungement.
A typical timeframe to complete the expungement of a felony in California is about 4-5 months. Cases are heard by the courts in the order in which they were filed. File the forms at the court in the county where you were convicted.
Petitions to reduce a felony to a misdemeanor and petitions to terminate probation must be mailed or delivered in person to the clerk of the court. Inquire as to whether, in your county, you are required to serve a petition to the district attorney or probation department.
Fees for filing the petition vary by county and whether the conviction is a misdemeanor or a felony. In some counties, a felony petition fee may cost twice as much as a petition to dismiss a misdemeanor. The cost of fees can be found on the court’s website.
If you are unable to pay the fees, financial assistance is available through the county. The court will set a date for your hearing when your forms and petitions are filed.
Step 4: Meet with your attorney to prepare for your hearing
You may or may not be required to appear in court for your expungement hearing. Your attorney will assist you in preparing for your expungement hearing.
During the hearing, reasons to deny your expungement will be raised and you will want to be prepared to respond to any possible reason in order to defend your petition. Gather any evidence pertinent to your case and prepare a statement to deliver to the court. Provide copies of your statement and all documentation.
Step 5: Your expungement hearing
Hearings are held before a judge with no jury present.
Expungement hearing proceedings usually take about 10 minutes. Be on time for your hearing and behave appropriately. During the hearing, the court will consider your eligibility for expungement based on the following:
- Your charges
- The status of your parole
- Whether you have any additional convictions
- Your ability to find and hold a job
- Community service and community involvement
Step 6: If your petition is accepted
You will receive a signed order from a California Superior Court Judge documenting the dismissal of your case and conviction.
Keep in mind that your record may still be accessed by the public after expungement unless you have the record sealed.
You are no longer required to answer “yes” when asked if you have a criminal record or felony conviction UNLESS you run for public office, apply for a state license, or intend to work for the California Lottery Commission.
Step 7: If your petition is denied
If the judge denies your petition, you may ask why it was denied and what is needed in order to have your petition accepted. Six months after your petition is denied and after you have made the necessary changes, you may refile your petition. If your petition was denied and you find that you are not eligible for expungement, you may find that you are eligible for one of the options detailed in the following section.
Alternatives to having your felony expunged
If your case is not eligible for dismissal or you are seeking additional methods of clearing your record, you may be able to take advantage of the 3 additional options described below.
Option 1: Have your records sealed or destroyed
By sealing your records any police reports, arrest records, and other documents pertaining to your case will be destroyed.
You may be able to have your records sealed if you were wrongly arrested but not convicted of a crime, you were arrested but criminal charges were never filed, your case was dismissed in court, you were acquitted by a jury. If you are seeking to seal records from a juvenile court case you may be eligible to petition if the jurisdiction of the juvenile court has been terminated for at least 5 years, you have not been convicted of any crimes of moral turpitude as an adult, or there is no pending civil litigation.
In order to have your records sealed you will need to receive a Certificate of Factual Innocence, Petitions for the sealing of records are usually contested and, if you are interested in pursuing this option, it is highly recommended that you do so with the assistance of an attorney.
Option 2: Obtain a certificate of rehabilitation
A certificate of rehabilitation is a method of receiving a direct pardon.
A direct pardon relieves you from the penalties associated with your conviction including the restoration of certain rights. A certificate of rehabilitation may be granted 7 years after you are released from probation and parole compared to the 10 years you have to wait in order to apply for a direct pardon.
A petition for certificate of rehabilitation is filed to the Superior Court rather than to the Governor’s office. A certificate of rehabilitation does not seal your records or erase a conviction from your record. If you receive a certificate of rehabilitation you will still need to answer “yes” to inquiries about prior convictions on job applications. A certificate of rehabilitation may be able to provide the following rights or benefits:
- The right to serve on a jury
- The right to vote
- The right to own or possess a firearm
If you are a sex offender, you may not need to register. You may be eligible for a certificate of rehabilitation if you meet the following criteria:
- 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 provided that you have not been incarcerated following the dismissal
- You have been a California resident for at least 5 years
- You are not eligible for a certificate of rehabilitation of you meet any of the following criteria:
- You received a death sentence
- You are on mandatory life parole
- You are in the military
Option 3: Receive a direct pardon from the governor
A direct pardon relieves you from the penalties associated with your conviction including the restoration of certain rights.
Because a certificate of rehabilitation leads to a direct pardon, a direct pardon will provide the same benefits as a certificate of rehabilitation after it is received.
A direct pardon is an option for those who are not eligible to file for a certificate of rehabilitation including those who no longer reside in California. A direct pardon is not equivalent to sealing or expunging your records.
Applicants must wait 10 years after release from probation and parole before applying for a direct pardon.
To apply for a direct pardon, the Application for Gubernatorial Pardon must be obtained from the Governor’s Office (can also be downloaded from the Governor’s Office website), filled out, and returned.