Many Californians who were once convicted of a criminal offense and now lead law abiding lives continue to suffer from the negative impacts of their conviction. Criminal convictions have devastating consequences in the lives of those convicted and their families for many years after the convicted person has served his or her sentence and complied with all the court’s requirements.
Those convicted of criminal offenses face difficulty in finding and retaining employment, acquiring adequate housing, and seeking higher education. Further, people with a criminal history often suffer from the stigma that is attached to the conviction.
While these convictions are oftentimes the result of youthful indiscretions or are the only criminal offenses the person has committed, the negative consequences of these convictions follow the person throughout adulthood.
Oftentimes, a person suffering from a conviction of a misdemeanor or felony offense is eligible to petition the court for an expungement. A person is eligible for an expungement pursuant to Penal Code section 1203.4 if they have fulfilled the conditions of probation for the underlying offense and are not (1) currently serving a sentence for any offense, (2) on probation for any offense, or (3) charged with the commission of any offense.
An expungement under this code section allows the person to withdraw his or her plea and enter a plea of not guilty. The court will then dismiss the charge against the person and the person will be released from many of the penalties and disabilities resulting from the offense. Once granted this relief, a person may lawfully state that they have never been convicted of a criminal offense (subject to certain exceptions).
Although the criminal history of a conviction is still visible after an expungement is granted, it will reflect that the conviction has been dismissed and thereby improves one’s criminal record.
General Explanation of Expungement Process:
The criminal justice system can prove complex and overwhelming to many people. However, seeking a criminal expungement does not have to be.
The first step in determining whether you or a loved one may qualify for expungement relief is to ensure that the person has completed all the requirements of probation or a misdemeanor terminal sentence.
Worried that you may not have successfully completed probation? Even if the person violated probation prior to its termination, Section 1203.4 provides the court discretion in granting relief to these persons as well. To be successful in these cases, the petition and/or motion should include an argument with documentation, if available, arguing that relief under this section is in the interests of justice.
Next, determine if you want to attempt to file this motion on your own or whether you would benefit from the assistance of an attorney. Although you are able to file this motion on your own behalf, a lawyer will be able to navigate the process on your behalf to seek an effective and beneficial result. An attorney may have the specialized knowledge on where to file the petition, what arguments the court may find convincing, and how to address any opposition from the prosecution.
It is important to be aware that not all offenses qualify for relief under this section and relief pursuant to Penal Code section 1203.4 will not relieve someone of the requirement to register under Penal Code section 290, if applicable.
The next step in obtaining an expungement is to complete the petition and/or motion and file it with the appropriate court. In order to accurately and efficiently complete the petition, you should obtain a copy of your docket for the case in which you were convicted, or an attorney can do this for you. Dockets can be obtained from the Criminal Clerk’s office for a small fee. This docket will provide the code section for the offense you were convicted of, the date of the conviction, the prosecuting agency, and the date you completed probation.
After filing the petition, the clerk’s office will schedule a hearing on the motion generally within two weeks to two months from the filing date. This hearing is your opportunity to prove that the requested relief is warranted and granting this relief would be in the interests of justice. This hearing is also the prosecuting agencies opportunity to oppose your request and you should be prepared to respond to this opposition.
General Steps for Reducing a Felony Offense:
In addition to relief under Section 1203.4, a person convicted of specified felony offenses may also qualify for a reduction of the offense to a misdemeanor. Pursuant to Penal Code section 17(b), those convicted of certain “wobbler” offenses may petition the court for a reduction to a misdemeanor. When seeking relief under this section, the petition and/or motion should provide documentation arguing why the relief is appropriate and in the interests of justice.
To determine whether a crime you have been convicted of qualifies for relief under this section, you must determine whether it is a “wobbler” offense. Wobbler offenses are “crimes that, in the trial court's discretion, may be sentenced alternately as felonies or misdemeanors--upon imposition of a punishment other than state prison (§ 17(b)(1)) or by declaration as a misdemeanor after a grant of probation (§ 17(b)(3)).” (People v. Superior Court (Alvarez) (1997) 14 Cal. 4th 968, 974. When charging someone with these types of offenses, the prosecuting agency, at the time of filing, has the option to file the offense as a misdemeanor or felony.
Oftentimes, a person convicted of a wobbler offense seeks relief under both Section 17(b) and 1203.4 within the same petition to the court. In effect, if the requested relief is granted, this person’s offense is first reduced to a misdemeanor and then dismissed. In order to ensure that a person has put forth the best argument for this type of relief, these petitions should include documentation establishing reformed behavior and a law-abiding life since the offense.
If your petition requires you to argue why the relief requested is in the interests of justice or if you are seeking a reduction of your felony offense, it is beneficial to attach any of the following documentation: employment history, educational courses completed or currently enrolled in, character references from co-workers, acquaintances in the community, or friends and family that can attest to your reformed character, specialized trainings or certificates, and any involvement and/or volunteer work you have done within your community.
If you believe you may qualify for any of the relief discussed above, start the new year off right by attempting to obtain post-conviction relief today. Seeking expungement relief today may provide you the opportunity to spend the year without the burden of your criminal conviction.
For a free consultation, call 626-577-7700.
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