A conviction record can continue to follow you into your life long after you have successfully served your sentence, affecting your housing, employment, and reputation. The good news is that California law provides a legal remedy known as expungement, which offers a fresh start by erasing particular convictions from a person's criminal record. Expunging your record can avert many issues, for example, challenges in securing a job or an apartment. However, not all crimes can be expunged. The state law is categorical regarding which violations are expungible to avert misuse of the legal system.

Types of Expungible Crimes

Expungement in California is described under PC Section 1203.4. It allows individuals convicted of certain crimes to have the record of those violations deleted from their criminal records. When a judge grants your petition to expunge, they will direct you to withdraw your plea of nolo contendere or guilt, and the court will dismiss your case. If the judge found you criminally liable during a court trial, they will set aside the guilty verdict and then dismiss your case.

An expungement is a form of post-conviction relief, and it frees you from most, though not all, disabilities and penalties of a conviction. This can significantly enhance your capability to move on with your life without legal hurdles. However, whereas the state law is generous and considerate, it is not limitless. That means there is a limit to the types of crimes that can be expunged. Specific criteria describe which crimes qualify for an expungement in California.

Expungible Misdemeanors

Generally, all misdemeanors, if not all, are expungible as long as you meet the requirements. To expunge a misdemeanor offense, you must have:

  • Completed serving your misdemeanor jail or probation term, whichever the court imposed
  • Not presently serving probation for, charged with, or serving a term for an offense
  • Paid your court fine and victim restitution if the judge imposed them.

Successfully serving your probation sentence means fulfilling all the imposed conditions for the entire probation period or until the judge discharges your sentence in case of early probation termination. Prevalent probation conditions courts order include, but are not limited to, the following:

The requirement to:

  • Not to violate any other law
  • Obey all rules, orders, directives, and orders of the jail and court
  • Agree to undergo police searches and seizures of your property and person, with or without a warrant
  • Complete community service hours. 
  • Pay restitution
  • Complete rehabilitation programs
  • Attend alcohol programs or drug treatment programs
  • Meet regularly with your probation officer

If you violate one or more of your probation terms, you might still qualify to erase your record. However, this will be at the judge's discretion. The judge will schedule a proceeding to decide whether to grant you an expungement despite having breached probation terms. At the hearing, the judge may consider some factors, including:

  • Your general performance while serving your probation sentence
  • Your criminal history
  • The seriousness of the underlying conviction
  • Any more evidence that demonstrates why you deserve this relief, like
    • Your family support
    • Opportunity to land good employment
    • Strong ties to the community

Prevalent examples of expungeable misdemeanor offenses include the following:

  • Disturbing the peace
  • DUI
  • Simple assault
  • Drug possession
  • Petty theft
  • Public intoxication
  • Criminal trespass

Expungible Felonies

Expunging felonies is pretty complicated. Under California law, only certain felonies are expungeable under particular conditions, while others are ineligible. Generally, felonies that are expungible are those whose sentence is served in jail rather than prison.

Felonies that have attracted a felony probation sentence instead of a prison term also qualify for erasure. Often, felonies that attract a jail sentence or formal probation are those that are non-violent, for example, theft offenses and drug-related offenses. Violent felonies typically attract a state prison sentence, and therefore, may not be expunged. To qualify for a felony expungement, you must have:

  • Completed serving your felony probation or county jail sentence, whichever the judge imposed.
  • Be not presently serving probation for, charged with, or serving a term for an offense.
  • Must have paid your court fines and restitution if the court imposed them

Certain felony offenses may require further steps before you can have them expunged. For example, if the court convicted you of a felony wobbler and it does not qualify for erasure, you might have to lower it to a misdemeanor per PC 17b for you to qualify. If a felony conviction is lowerable to a misdemeanor, the process of expungement becomes more streamlined, making it much easier to clean your record. After you have reduced the conviction to a misdemeanor, you can petition for a misdemeanor expungement under PC 1203.4.

Additionally, in some instances where you have served time in prison, you may need to apply for and be granted a Certificate of Rehabilitation (COR) first before qualifying to seek an expungement.

You Can Also Expunge Your Felony Record If You Could Have Faced a Jail Sentence Per the Proposition 47 Realignment Program

If the court sentenced you to a prison term, you could still qualify to erase your record if you would have been subject to a jail term had the offense occurred after the enactment of the Proposition 47 realignment statute in 2011. According to this exception, legislated under PC Section 1203.42, judges possess the legal discretion to agree to your request if the following is true:

  • They believe erasing your record would serve the interests of justice
  • A minimum of 24 months has gone by since your sentence ended
  • Your offense currently carries jail time instead of prison time
  • You are not:
    • Serving an incarceration period for any violation
    • Subject to any supervised incarceration release for any violation
    • Serving probation for a crime
    • Accused of the perpetration of any violation

To expunge your record in accordance with Section 1203.42 of the Penal Code, you must bring a petition to court yourself, through legal counsel, or via a probation officer. Once you do that, either of these steps will follow:

  • If you had entered a plea, the court would let you withdraw that plea and then plead not guilty to the charges
  • If you had been found criminally liable after a trial, the court would set aside its judgment

Whichever the case, the court judge would then dismiss all the allegations against you. After this happens, it will be as though you obtained a standard expungement under PC Section 1203.4.

Some Felony Convictions Are Expungeable Even If Their Sentence Was Served In State Prison

In September 2022, California Governor Gavin Newsom signed SB 731, which then took effect on July 1, 2023. By passing this law, lawmakers expanded the types of offenses that qualify for erasure. This law allows courts to exercise their discretion to expunge certain felony conviction records even if the person served time in prison.

Before the passage of this law, a prison term would automatically disqualify a felony conviction from expungement. However, certain sexual crimes necessitating sex offender registration and violations against minors are particularly left unqualified for an expungement.

Specifically, SB 731 amended PC 1203.41. As per these amendments, as of Jul. 2023, certain felony offenses that lead to a state prison term now qualify for expungement. This law applies to all convictions that happened after, on, or before Jan. 1, 2021. After you have been informed about your right to request an expungement under this law, you can present your petition in writing via your probation officer or attorney.

For the court to grant your petition, your probation officer or attorney must give fifteen days’ written notice to the D.A. after bringing the petition. The probation officer or attorney must then file proof of service with the court. This proof of service is presumed to mean that the D.A. has already received notice. The D.A. must then show up in court to challenge the petition. If they do not appear, they cannot later request the court to set aside the petition.

You can be granted an expungement under PC 1203.41 provided:

  • The felony offense does not qualify under existing laws
  • A minimum of two years has elapsed since you completed your prison term.

If you request an expungement of your felony, you must pay a maximum of $150 to the city council, a maximum of $150 to the county, and a maximum of $150 to the state, regardless of whether or not your request will be granted. However, these fees do not establish your qualification for an expungement. Also, the court may waive these charges if it finds that requesting them will subject you to undue hardship.

What an Expungement Cannot Do For You

As mentioned, an expungement frees you from the burden of a criminal conviction and reinstates most of your rights. However, there are some things an expungement cannot do. These include the following:

  • An expungement will not reinstate your driving privilege if your driver's license was suspended or revoked under Vehicle Code 13555.
  • If you were convicted of an offense requiring sex offender registration, a record expungement will not free you from this duty.
  • If you are charged with another crime, your expunged conviction can be considered a prior for sentencing purposes in the new violation. The record will be used as though you never erased it.
  • You are mandated to disclose the expunged conviction when seeking public office or applying for a license from a federal, local, or state body or agency. You must also disclose the record in dealings with the California State Lottery Commission.
  • An expungement cannot restore your legal right to buy, own, or possess firearms.
  • If you are banned from holding any public office due to a conviction, a record expungement will not restore your permission to hold public office.
  • Any criminal restraining orders the court issued against you for domestic abuse, stalking, elder abuse, or injury to a spouse remain in effect even after you have expunged your conviction record.

Crimes Ineligible for Expungement

Some crimes are automatically disqualified from being expunged regardless of the facts. These include sex crimes involving minors, such as the following:

  • PC 286c Section, sodomy with a child
  • PC 288a(c), oral copulation with a child
  • PC 288, lewd and lascivious acts with a child
  • PC 288.5, continuous sexual abuse of a minor
  • PC 289j, forcible sexual penetration with a child under fourteen years old
  • PC 261.5d, illegal sex with a child below sixteen years old perpetrated by an individual over twenty-one years old.
  • PC 261, statutory rape
  • PC 311, distribution or possession of child pornography

These crimes are deemed too severe because of the long-lasting harm they inflict and concerns about public safety. Other crimes that may be ineligible for erasure are:

  • Any special misdemeanors or infractions under VC Section 42001
  • VC 42002.1, failure to stop and agree to inspection of equipment or for an unsafe condition endangering someone
  • Violent felonies such as armed robbery, murder, and kidnapping
  • Crimes requiring registration as a sex offender

You also cannot expunge your record if you are on parole or still undergoing mandatory supervision per PC 1170h. In addition, you will not be able to expunge if you face charges for another crime.

The rationale behind these exemptions is to strike a balance between the public interest and the need for second chances. The courts look at factors such as

  • The severity of the crime
  • The victim's vulnerability or age
  • Danger to public safety
  • The type of rehabilitation

The objective of the criminal justice system, in this case, is to provide individuals with a path forward. However, it also must prioritize safeguarding the general public and respecting the seriousness of certain offenses.

If your crime does not qualify for erasure, there are still various legal remedies you could try to pursue if eligible. These include:

  • Governor's pardon
  • Certificate of Rehabilitation
  • Record sealing

Each of the above alternatives has distinct requirements and advantages. Your lawyer can help you determine the appropriate approach.

Find an Experienced Record Expungement Lawyer Near Me

Determining whether your crime is eligible for expungement can be a confusing process. However, you need not do it alone. At the Law Office of Sara L. Caplan, we provide honest legal advice on expungement backed by actual courtroom insight. We can help you determine your qualification and navigate the expungement process, just as we have assisted many clients seeking these services in Los Angeles. Call today at 310-550-5877 to schedule a complimentary case review and discover your next ideal steps.