By Dana M. Grimes, Esq.
There are ways to minimize the impact of past convictions for people who have successfully completed the terms of their sentences. The primary statute is Penal Code 1203.4, which provides for Expungement in California Criminal Cases. There is no way to seal or destroy a record in California adult court, other than pursuant to some very limited and rarely granted statutes. One of those is Penal Code § 851.8, which requires a finding of factual innocence. Juveniles are eligible for sealing their record five years after the jurisdiction of the juvenile court has terminated or at any time after the person has reached 18 years of age. See, Welfare & Institutions Code § 781.
Expungement in California Criminal Cases
Penal Code § 1203.4 expungement is available to any defendant who was placed on probation and successfully completed probation for any misdemeanor or felony conviction when the defendant is not charged with or on probation for a new offense. This process is called “expungement”. That term is a misnomer, inasmuch as it implies that the record or conviction is being sealed or destroyed. It is more accurately a dismissal of the case after successful completion of probation.
Under California Penal Code § 1203.4, the defendant withdraws his guilty plea, and the court dismisses the charge upon which he had been convicted. The court file is still a matter of public record. The statute provides, except as elsewhere stated, the defendant is “released from all penalties and disabilities resulting from the offense.” Penal Code § 1203.4. An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute; he or she must not be serving a sentence for any other offense, anywhere. Id. In some cases, the court will grant a motion to terminate probation to make the defendant eligible for an expungement.
If the conviction was a strike, it will still be a strike for purposes of subsequent convictions under the three-strike law. If the conviction was a DUI, it will still be “priorable” for purposes of any future DUI convictions, it will still show up on the DMV record, and will affect insurance premiums. If the conviction was a sex registration offense, the person must still register as a sex offender. Penal Code § 290. If the conviction makes the person eligible for deportation under INS proceedings, expungement does not affect that process.
The main benefit of an expungement in California Criminal Cases is that for the purpose of many job applications, it allows the person to answer truthfully that they have no convictions. However, keep in mind that the conviction can still be discovered. In some cases, it might be better to disclose the initial conviction and its later expungement.
A less commonly known but often valuable benefit of an expungement in California Criminal Cases is that it prevents the person from being impeached with a prior felony conviction when testifying as a witness. There is an exception for this if he or she is being tried for a subsequent criminal offense. Evidence Code § 788(c). It can be of great benefit to civil lawyers who have clients or key witnesses with criminal convictions for crimes of moral turpitude (usually felonies) to get those convictions expunged before trial of the civil matter.
In 2013, California Labor Code 432.7 was amended. It now provides that an employer may not use a case which has been dismissed under Penal Code 1203.4 in making employment decisions. This provides a new level of protection for employees and prospective employees from having their record used against them, and makes it more important than ever to request dismissal under Penal Code 1203.4 for qualifying convictions.
Some people who took post plea diversion on small drug offenses, under Penal Code 1000, found that even after the case was eventually dismissed, the guilty plea was used against them for purposes including immigration, or some licensing purposes. Penal Code 1203.43 is designed to remedy that problem by obtaining a court order ruling the guilty plea invalid.
California Penal Code § 17(b)
Certain felonies are non-reducible. Crimes that can be charged as a misdemeanor or a felony are called wobbler felonies. California Penal Code § 17(b) provides that when a judge reduces a wobbler felony to a misdemeanor, it becomes a misdemeanor “for all purposes.” This includes restoring the right to possess a firearm (unless the conviction was for certain crimes of violence). Expungement under Penal Code § 1203.4 does not restore the right to possess a firearm. In cases in which the client is eligible for relief under both sections, first we file a motion asking for reduction to a misdemeanor under Penal Code § 17(b), which can restore a person’s Second Amendment rights. Then we file for expungement under Penal Code § 1203.4, dismissing the case.
Reduction to a misdemeanor also prevents the felony conviction from being used for impeachment of testimony under Evidence Code § 788. Unlike Penal Code § 1203.4, the defendant need not wait for the completion of probation to become eligible for a reduction to a misdemeanor under Penal Code § 17(b). In fact, when a person pleads guilty to a wobbler felony, his or her criminal defense attorney may bring a motion to reduce the felony to a misdemeanor right away or a few weeks later at the sentencing hearing. Also unlike Penal Code § 1203.4, whereas expungement relief is granted as a matter of right to eligible defendants, reduction of a felony to a misdemeanor is frequently opposed by the District Attorney’s office, and is not always granted by the court, especially in cases of serious wobbler felonies such as those involving great bodily injury. Sometimes the District Attorney will agree during the plea agreement process to not oppose the reduction to a misdemeanor after the successful completion of probation, or even after a period of 18 months or so on probation. This plea agreement will greatly enhance the chances of having the motion to reduce to a misdemeanor under Penal Code § 17(b) granted by the court.
Before bringing these motions, criminal defense attorneys must verify that the client does not have any new cases, and that they have complied with all conditions of probation, including payment of fines and restitution. Any eligible defendant should move for expungement (and for reduction to a misdemeanor first, if they are convicted of a wobbler felony).
State Court Commutations and Pardons
There are procedures in state court to obtain a Certificate of Rehabilitation and Pardon, which takes much longer than an expungement, and in most cases does not have any practical effect beyond a Penal Code § 1203.4 expungement. These procedures are set forth in Penal Code § 4800 et seq. The general authority to grant reprieves, pardon, and commutation of sentence is conferred upon the Governor by Section 8 of Article V of the Constitution of the State of California. Penal Code § 4800. This power recently received publicity when one of Governor Schwarzenegger’s last official acts was to commute the 16 year sentence of Esteban Nunez to 7 years. This commutation power is very rarely used, and in the vast majority of cases it would be a waste of time to request it.
At the end of 2016, Governor Brown granted a number of pardons for state court convictions, and President Obama granted a number of pardons for federal convictions. The details of the cases in which pardons were granted can be found on the respective state and federal web sites.
Federal Law Convictions Permanent
There is no federal equivalent to Penal Code § 1203.4 or Penal Code § 17(b). Anyone who suffers a felony conviction in federal court is going to have his or her case begin as a felony and remain a felony forever. If a state court felony conviction is reduced to a misdemeanor under Penal Code § 17(b), it can (depending on the offense) prevent future prosecution of that client under the federal felon in possession of a firearm statute – – Title 18, U.S.C. § 922. However, since there is no federal court equivalent to Penal Code § 17(b), if the underlying felony conviction is a federal one, a defendant is out of luck and forever loses his or her right to bear arms. Federal law also does not have statutes similar to PC 1203.4, which permits expungement in California Criminal Cases.
Executive clemency includes the President’s ability to issue a pardon, commutation of sentence, or remission of fine or restitution and grant reprieve. The Office of the Pardon Attorney, in consultation with the Office of the Attorney General, assists the President in the exercise of executive clemency as authorized under Article II, Section 2, of the United States Constitution. Under the Constitution, the President’s clemency power extends only to federal criminal offenses. Presidential commutation of a sentence does not remove the conviction but does eliminate the custody. When President Obama left office in January of 2017, he had granted 212 pardons and commuted 1,385 prison sentences, the most commutations of any president in history. The list of those pardons and commutations can be seen on www.justice.gov.
The Right to Vote
Much of the public seem to be under the impression that upon conviction of a felony, a citizen loses the right to vote. This is not always the case. The manner in which felony convictions may restrict the right to vote in federal elections is controlled by the laws of the individual states, which are not at all consistent with one another. Florida – the same state whose electoral processes were decided in Bush v. Gore (2000) 531 U.S. 98 – prohibits all felons from voting, a rule which has been attacked as an attempt to limit the voting of African-Americans in that state. In California, felons can vote as long as they are not currently in custody.
The policy of the DA at the present time is to not oppose motions for dismissal under PC 1203.4 for most offenses, ASSUMING that a records check of the defendant shows that he has successfully completed probation and is otherwise eligible. There is legal authority for the position that a defendant is entitled to this relief if probation has terminated successfully even if there may be fines or restitution that were not paid. Check the court file and check with Revenue and Recovery, to see if there are outstanding balances, and we think it is a good idea to pay them off before bringing the motion. The DA will often oppose motions for dismissal under PC 1203.4 for certain offenses described in that statute as discretionary, including DUIs. Do not assume the motion is going to be granted in those cases by just filing the motion, putting all of the compelling reasons that will establish to the judge a clear and convincing case that the defendant should be granted this discretionary relief, and setting the matter on calendar for a hearing. Different judges have different views of what constitutes a valid ground for expungement, so you should talk to other lawyers who have appeared in front of the judge that is going to hear your motion.