CLEARING CONVICTIONS FROM A CLIENT’S CRIMINAL RECORD, By Ronald Spencer, Esq.

In the 1940s, individuals with felony convictions on their records flooded the Governor’s office with requests for pardon so that they could obtain lucrative employment at defense plants. In response to this, Penal Code §4852.08 was adopted. It assigned the authority to determine if an individual should receive a pardon to the Superior Court. If the Superior Court granted an individual a “Certificate of Rehabilitation” under this statute, then the certificate was transmitted to the governor who could, without any further investigation, grant a pardon. The Legislature followed this with Penal Code §1203.4, under which the superior court could vacate the guilty plea of an individual given jail and /or probation (not prison) and then dismiss the charge  against him or her (expungement). For more than two years, I volunteered at the Ventura County Public Defender assisting clients with cleaning their records. I present the three most common circumstances below. Forms are available at the Superior Court website.

Misdemeanor Convictions:

The defendant must have served any jail or probation and paid all fines and fees. If the defendant was sentenced to only jail and fines, Penal Code §1203.4(a) is applicable and a standard form petition and order are filed with the court (CR-180, CR-181). The clerk accepts the form, orders a rap sheet, and sends the package to a judge in chambers for judgment. If the defendant was sentenced to probation, the same forms are filed but Penal Code §1203.4 is applicable. If the defendant violated his grant of probation, the court may deny the motion and a declaration must be attached to the petition which persuades the judge to grant the expungement nevertheless. Without a violation of probation, the court “must” grant an expungement. The declaration should tell the court about the hardship caused by the conviction with respect to employment, housing, and social services, and how the defendant has reformed. It is recommended  that letters of character reference be attached to the petition.

Certain misdemeanor offenses such as weapon possessions or domestic violence offenses cause a ten-year weapons prohibition. The expungement will not reduce this.  If the defendant was convicted of a  misdemeanor sex offense, the expungement will not eliminate the   registration requirement and a certificate of rehabilitation may be filed seeking a pardon to eliminate this duty. A certificate petition must provide evidence from the defendant’s doctor to show that he will not reoffend.

If the defendant was convicted of a misdemeanor sex offense, the expungement will not eliminate the registration requirement and a certificate of rehabilitation may be filed seeking a pardon to eliminate this duty. A certificate petition must provide evidence from the defendant’s doctor to show that he will not reoffend.

If the misdemeanor was a crime of domestic violence, the defendant will likely be prohibited from buying a firearm under the Brady Act. A denial of this right by the federal government may be challenged under 18 USC §921(33)(B)(ii) in an appeal to the NICS system, or in federal court if necessary.

Felony Convictions (jail sentence and/or probation granted):

The defendant must have served all jail time and completed probation and paid all fines and fees. A motion must be filed with the court with service to the district attorney and the probation department in the venue of conviction. If the offense is a wobbler felony, the motion should be captioned to reduce the charge to a misdemeanor per Penal Code §17(b), and to then dismiss the charge pursuant to Penal Code §1203.4.

If the offense is not a wobbler, then the Penal Code §17(b) portion should be omitted. The motion should contain a history of the conviction, sentence, and date of completion of probation. The date and substance of any violations of probation should be disclosed. The motion should stipulate that the defendant has since obeyed the laws of the land and lived an upright life. If there are violations of probation, a persuasive discussion of the defendant should be included as with the misdemeanor case of violation of probation.

The motion should be captioned to show that the wobbler felony is to be reduced per Penal Code §17(b) because if the charge is reduced under the auspices of Penal Code §1203.4, the defendant will not have his or her firearms rights restored and will still be a felon prohibited from possessing a firearm under federal and state law. If the felony is a non-wobbler offense, the expungement will not restore the right to possess a firearm. A certificate of rehabilitation may then be filed and a pardon sought from the governor to restore this right unless the offense was assault with a weapon.

Sex offenses under Penal Code §§288, 288(a), 288.5, 289(j), or 261.5(d) are not eligible for expungement.

The motion should be calendared 21 days from the date of service for a hearing. At the first hearing, the court will refer the matter to the probation department for a report. Then the court will continue the case to a second hearing for the decision. A petition (form CR-180) and order (CR-181) are attached to the motion. The defendant need not be present at the hearings.

Felony Convictions (Prison Sentence):

If the defendant received a prison sentence, he is not eligible for an expungement. The only remedy is a certificate of rehabilitation. A period of rehabilitation which begins at the time of release on parole, and which ranges in time from seven to ten years depending on the offense, must have lapsed.  The certificate filing will consist of a notice, petition, and the actual certificate. The D.A. and the Governor’s legal affairs office must be served. The D.A. must be contacted first to determine the court date for the certificate hearing. Typically there is a six-month period from filing until hearing. During this period, the defendant is contacted and investigated. The certificate of rehabilitation must be filed in the county of residence of the defendant, not necessarily the venue of conviction. Penal Code §§286, 288, 288(a) and (c), 288.5, and 289(j) convictions are not eligible for a certificate of rehabilitation. Members of the military are ineligible. The defendant must have resided in California for five years before filing.

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