Perhaps one of the most effective and helpful forms of post sentencing relief is an expungement of one’s conviction of a felony or misdemeanor offense (Penal Code section 1203.4). The reason being that, if the motion is granted, the client can legally state he/she has never been convicted of the crime charged (with a few exceptions, including application to become a law enforcement officer). And for those who obtain such relief, they will receive court documents stating that the “case is dismissed”. To be eligible:
- the offense itself must be eligible for expungement
- the client must no longer be on probation in any case
- the client must not have any open or pending cases
In certain cases, such as sex crime offenses, an expungement is not available (however, the felony may still be able to be reduced to a misdemeanor – see 17(b) Motion). If the client is still on probation, he/she will have to wait until probation expires or request an early termination of probation (see Early Termination of Probation). Another consideration is whether the client completed all of the affirmative obligations of probation (for example, parenting classes, domestic violence program, or drug counseling, community service, Cal-Trans, restitution to the victim, etc.). If all the client’s probationary terms were completed properly and the other conditions have been met, it is very likely an expungement will be granted. In situations where the client did not complete all of his/her probationary obligations, a well-experienced attorney may still be able to demonstrate to the judge why the court should “exercise its discretion” to grant the expungement.
It should never be taken for granted that a judge will grant an expungement motion, even when “all the boxes” have been checked. The motion should be in writing and filed with the court in which the defendant was originally sentenced, even if the judge who imposed the sentence is no longer on the bench or is now retired. The motion must be filed with the court and served on the prosecutor’s office at least 15 days before the hearing date on the motion. This rule is to allow the prosecutor time to respond to the motion; either to object to the request or to inform the court of any discrepancies in the defendant’s performance while on probation.
The motion should be prepared by an experienced attorney, who is familiar with drafting such motions. The attorney will include a statement of facts and most importantly, lay out the compelling reasons why the court should grant the motion. A declaration should also be included and signed by the client affirming the reasons set forth in the motion. At the hearing on the motion, a well-prepared attorney should anticipate any objections by the prosecutor so that he/she will be able to overcome those objections, if any. In many cases, the attorney can “sound out” the prosecutor’s views before the motion is even heard on the record.
If an expungement is granted, the judge will sign an order stating such. Additionally, the court clerk will also be able to prepare a docket of the court minutes. Copies of the court order can be provided to potential employers, or to whomever, such information may/will have a positive impact. Additionally, the court clerk will forward the information to the California Department of Justice so that the client’s record will be updated to reflect the expungement order. While an expungement can provide a tremendous lift to a client’s chances for a new job opportunity or position, it is important to discuss all the implications and exceptions of P.C. 1203.4 with an experienced attorney.
Practical note: Even with an expungement, the offenses will not be “wiped away” or completely erased from an individual’s “rap sheet”. There will be entry on the individuals’ record that states that the offense was “dismissed pursuant to 1203.4(a)” of the California Penal Code.