Dismissing Past Convictions (Expungement)

California Penal Code 1203.4 and 1203.4a permit most people convicted of California crimes to have their convictions dismissed after—sometimes long after—their conviction or guilty plea.

Although this is commonly called an “expungement,” as 1203.4 dismissal is actually more powerful. Rather than having your prior conviction “erased,” instead, your California expungement attorney asks the court to permit you to withdraw your guilty plea, or vacate your conviction, and replace it with a dismissal of charges.

Petition.

To petition for 1203.4 dismissal, a California expungement attorney will first collect information about the prior conviction. It is important to assure that all relevant information is placed before the judge so that all charges are dismissed. This petition may include information about the offense, the probationer, letters of recommendation, proof of compliance with the terms of probation, and any other material that may assist the court in making a decision.

Sometimes it is hard to find records of your former convictions. In many cases, court records after 10 years have been destroyed. See Government Code section 68152. Therefore, your California expungement attorney may first seek an abstract of your criminal record from the California Department of Justice to make sure all your prior acts get dismissed.

Who is Eligible?

Most people with crimes resulting in a conviction are eligible for dismissal. However, you are not eligible if your conviction was for one of a few sex crimes, People v. Lewis (App. 4 Dist. 2006) 53 Cal.Rptr.3d 40, 146 Cal.App.4th 294. You may not obtain dismissal of old vehicle code (traffic) infractions, although all vehicle misdemeanors such as driving under the influence may be dismissed.

If your conviction resulted in a probation term, you must first complete your probation before seeking dismissal under Penal Code 1203.4. However, you may seek early termination of probation under Penal Code 1203.3 and dismissal simultaneously. Thus the judge would grant early termination of probation and dismissal at the same moment.

You may not obtain dismissal where you were sentenced to a term in state prison, even if that sentence was suspended. People v. Borja (App. 1 Dist. 1980) 167 Cal.Rptr. 813, 110 Cal.App.3d 378. However, if you served time instead in county jail or only served your penalty on probation, you are eligible for dismissal. Former state prisoners should instead seek to vacate their conviction or seek a certificate of rehabilitation or pardon.

You must first pay all restitution ordered before seeking expungement. People v. Covington (App. 5 Dist. 2000) 98 Cal.Rptr.2d 852, 82 Cal.App.4th 1263. However, you do not need to have paid all probation fees. People v. Bradus (App. 4 Dist. 2007) 57 Cal.Rptr.3d 79, 149 Cal.App.4th 636.

Dismissals Under 1203.4 and 1203.4a – What is the Difference?

Your California expungement attorney will decide under which statute you should seek dismissal. Generally, 1203.4 is for people who obtained a probationary sentence for a felony or a misdemeanor. By contrast, 1203.4a is for people who did not serve any probation for a misdemeanor or an infraction. As of January 1, 2011, infractions other than those in the Vehicle Code are dismissible.

What Does Dismissal Accomplish?

A dismissal under 1203.4 or 1203.4a vacates your conviction—whether it be by guilty plea or conviction at trial—and replaces it with a dismissal. Thus your criminal record will show the charge was dismissed. Files are not destroyed; however, after 10 years the court may destroy records of convictions under Government Code 68152.

Hearing.

The court is required to grant dismissal if the petitioner has fulfilled the conditions of his probation for the entire period. People v. Mgebrov (App. 1 Dist. 2008) 82 Cal.Rptr.3d 778, 166 Cal.App.4th 579; People v. Bradus (App. 4 Dist. 2007) 57 Cal.Rptr.3d 79, 149 Cal.App.4th 636.

The probationer seeking early termination of probation must give 15 days notice to the prosecuting attorney on the underlying case.[1] This is usually the local district attorney or in rare cases the California Department of Justice. If the prosecuting attorney does not show up or object to the petition, they may not later reopen the issue or appeal.[2]

Reducing a Felony to a Misdemeanor Before Seeking Dismissal.

We believe it beneficial to reduce a felony to a misdemeanor before seeking dismissal.

Under California law, many crimes can be prosecuted or sentenced as either a felony or a misdemeanor.[3] California attorneys call these crimes “wobblers.” Even if someone is convicted or pleads guilty to a felony, if that crime is a wobbler the crime can later be reduced to a misdemeanor. California expungement lawyers will often seek to reduce the crime to a misdemeanor at the same time as a petition for early termination of probation. Ideally, someone serving felony probation on a wobbler will seek early termination of probation, reduction to a misdemeanor, and expungement. This can be accomplished in a single hearing or several over time.

For example, a reduction of a felony conviction to a misdemeanor precludes its later use as predicate offense for possession of a firearm by a convicted felon. People v. Gilbreth (App. 1 Dist. 2007) 67 Cal.Rptr.3d 10, 156 Cal.App.4th 53, appeal after new sentencing hearing 2009 WL 715987, unpublished. However, one should be careful regarding federal felon in possession statutes and consult a qualified California expungement lawyer.

By contrast, a dismissal under 1203.4 of a felony—without reducing it to a misdemeanor—does not restore the right to possess a firearm, whether concealable or not. See People v. Frawley (App. 1 Dist. 2000) 98 Cal.Rptr.2d 555, 82 Cal.App.4th 784; California Penal Code 12021.

What Dismissal Does NOT Do.

Although you may truthfully answer “no” when asked if you have a criminal record, you must still reveal the prior conviction, now dismissed, when applying for a state license.[4]

A conviction later dismissed under 1203.4 or 1203.4a may still be used against you as a prior conviction for a subsequent prosection.

Records are not literally destroyed upon granting of a dismissal. They may be after 10 years at the discretion of the court under Government Code 68152.

If the conviction precludes holding a public office, dismissal will not restore your right to public office. For this, you should seek a pardon or a certificate of rehabilitation.

Where a conviction may be used by federal immigration authorities to deport or remove a foreign citizen, dismissal, which is a state remedy, will not preclude deportation. U.S. v. Alvarez-Varela, C.A.9 (Cal.) 2006, 175 Fed.Appx. 127, 2006 WL 908233; Ramirez-Castro v. I.N.S., C.A.92002, 287 F.3d 1172.

Where a conviction requires registration under Megan’s Law, California’s sex offender registration system, dismissal will not relieve the defendant of the obligation to continue to register annually. Doe v. Brown (App. 4 Dist. 2009) 99 Cal.Rptr.3d 209, 177 Cal.App.4th 408, review denied; People v. Fioretti (App. 6 Dist. 1997) 63 Cal.Rptr.2d 367, 54 Cal.App.4th 1209, review denied. Instead, a sexual registrant may seek other remedies. These remedies are described elsewhere on this site.

A conviction dismissed under 1203.4 or 1203.4a is not expunged for purposes of calculating a defendant’s criminal history for a subsequent conviction in federal court. U.S. v. Stoterau, C.A.9 (Cal.)2008, 524 F.3d 988, certiorari denied 129 S.Ct. 957, 173 L.Ed.2d 153; U.S. v. Hayden, C.A.9 (Cal.)2001, 255 F.3d 768, certiorari denied 122 S.Ct. 383, 534 U.S. 969, 151 L.Ed.2d 293.

Gun Rights.

A dismissal under 1203.4 of a felony—without reducing it to a misdemeanor—does not restore the right to possess a firearm, whether concealable or not. See People v. Frawley (App. 1 Dist. 2000) 98 Cal.Rptr.2d 555, 82 Cal.App.4th 784; California Penal Code 12021.

Fees.

A petitioner for dismissal may be required to reimburse the court, whether or not the petition is granted and the records are sealed or expunged. The court determines this rate, but it may not be more than $150.[5] A petitioner may seek a fee waiver if they cannot afford this fee.

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