Eligibility for Record Dismissal or Expungements in California
UPDATED: June 19, 2018
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If you were convicted of a misdemeanor or a felony and were not sentenced to state prison or under the authority of the Department of Corrections and Rehabilitation you can petition for a dismissal. This means you were given county jail time, probation, a fine, or a combination of those three. If you are petitioning for a dismissal, the court upon proper motion, may withdraw your guilty or nolo contendere (no contest) plea, or verdict of guilty if you went to trial, and enter a not guilty plea. Then the court will set aside and dismiss the conviction. From that point forward, you are considered no longer convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.
To qualify to have your felony or misdemeanor conviction dismissed under Penal Code Section 1203.4, you must have (a) completed probation, (b) paid all fines and restitution, (c) not spent time in state prison for the offense, and (d) have no new charges to face. If you are still on probation, you can ask the court to terminate probation early and then ask for an expungement under Penal Code Section 1203.3. However, a person who failed to complete the terms of probation can still file for dismissed conviction if expunging the record would “serve the interests of justice.” In this case, the individual has the burden of producing evidence and convincing the court that he or she is fully reformed, no longer dangerous, and fully committed to lawful conduct in society.
It is easier to qualify to have your misdemeanor conviction dismissed under Sec. 1203.4(a). To qualify, there must have been no probation and a year must have passed since conviction. Also, you must have finished serving the sentence, have no new charges before you, and demonstrate that you are currently living “an honest and upright life.” Consider having letters of reference (e.g., character, work) handy for this purpose and your own.
To qualify to have your felony conviction reduced to a misdemeanor under California Penal Code Section 17, you must have successfully completed probation and defendant were not sentenced to state prison. Reduction from a felony to a misdemeanor is not possible for homicide/murder, certain sex crimes, or for more serious drug charges.
Felony convictions that result in a state prison sentence with no probation cannot be expunged. The only relief available is through a Certificate of Rehabilitation and Pardon. Once a Certificate is granted, it is automatically forwarded to the Governor’s office as an application for a pardon. For more information, see our article on California Certificate of Rehabilitation.
Hiring an attorney is advised, as they are familiar with the eligibility rules, what to expect from the judges in the area, and what arguments are most likely to persuade a judge to grant a favorable application.
You need not file for an expungement for these cases:
1. Diversion: If you successfully completed all of the diversion program requirements, your record is automatically changed to show a dismissal.
2. Marijuana Possession Offenses: If you were convicted of possession of marijuana for personal use after 01/01/76, your records are automatically purged after 2 years. However, this does not apply to convictions for cultivation, sales, or transportation.
Reducing “Wobbler” Offenses
An offense that falls between a felony crime and misdemeanor violation in California is known as a “wobbler.” With wobblers, the court can sentence you to state prison or up to one year in county jail. If you have been convicted of a felony that is also a wobbler, you may be able to consider your conviction a misdemeanor for purposes of California expungement.
For more information on California criminal expungements, see the following articles:
Overview of California Criminal Expungements
Process for Expunging Criminal Adult Records in California
Sealing and Destroying Adult Arrest Records in California: Factual Innocence Remedy
Sealing Juvenile Criminal Records in California
Expunging Adult Criminal Records in California
California Certificate of Rehabilitation
Do I Need an Attorney in California to File an Expungement or Petition to Seal my Criminal Records?