Having a criminal conviction record of any offense in California can weigh you down mentally and affect your ability to secure a job and even a place to live. Nowadays, every employer will look at your criminal record before signing any contract or employment agreement. Fortunately, under California Penal Code section 1203.4, you can file a petition for the expungement of your criminal record, which is also known as "vacating/setting aside a conviction.” We invite you to contact Orange County Criminal Defense Attorney Law Firm for legal assistance on setting aside a conviction for a fresh start to advance in your career and profession.
Reasons Why Vacating/Setting Aside a Conviction is Important
If you are considering filing an expungement petition, you must be experiencing a lot because of your past criminal record, which you have already paid your dues. Setting aside a conviction, also commonly known as expungement, can open your doors to incredible opportunities, whether you are looking forward to securing professional licenses or employment.
After setting aside a conviction, you can confidently say that you don't have a criminal record if anyone asks, unless if you are applying for a job as a law enforcement officer. If you are a foreigner living in Orange County, you might face the risk of deportation under immigration laws if you are found guilty of particular crimes of moral turpitude like rape. Even if the criminal offense was a felony, your criminal defense attorney could fight to reduce the offense to a misdemeanor for expungement eligibility.
Setting aside a conviction is possible for defendants with either a felony or misdemeanor conviction history. Particular felonies like drug offenses qualify for resentencing if the defendant participates in a diversion or rehabilitation program under proposition 36 (Prop 36). After completing the diversion program, the defendant can file a petition for the expungement of the charge from his/her criminal record for a fresh start. Make sure you consult a criminal defense attorney to know if you qualify for expungement under California Penal Code section 1203.4.
Eligibility Requirements for Setting Aside a Conviction in California
California Penal Code Section 1203.4 defines eligibility requirements and the process of filing a petition for setting aside a conviction/expungement. If you intend to file a petition for expungement of your criminal record in California for either a felony or misdemeanor offense, you must complete your probation and sentence. To complete your probation successfully, you must:
- Not violate any terms of probation, including paying restitution,
- Attend relevant counseling programs, and paying fines
- Attend every required court proceeding, whether personally or with your lawyer
- Not commit any other offense or serve a prison sentence while on probation
Whether you can qualify for an expungement in California depends on the nature of your offense, criminal history, and time that has elapsed since conviction or arrest. Suppose you were under sentence for a felony offense. In that case, you should consider filing a separate petition to reduce the offense to a misdemeanor before filing a petition for expungement of your conviction record. It is possible to reduce a felony offense to a misdemeanor through Prop 36 or Senate Bill 1437 resentencing motions in California.
Suppose you reduce your felony offense to a misdemeanor. In that case, you can file a petition for expungement of your criminal record as soon as you can. Also, you can consider requesting early termination of your probation under California Penal Code Section 1203.3 to pursue expungement of your criminal record. The judge can consider early termination of your probation if it hinders you from securing employment and professional licenses. However, the judge will require you to complete at least eighteen months of probation before filing a request for early termination of probation.
Suppose the judge grants an early termination of your probation. In that case, you will be eligible for expungement, which you can file immediately or together with the request for early termination of your probation. Under certain conditions, if you violate your probation terms, you might still qualify for expungement. The judge has the discretion to dismiss the conviction or not considering your overall probation performance and other pieces of evidence to prove you deserve this expungement, for example:
- Family support
- Opportunity to secure a good job
- Strong community ties
Factors That Can Affect your Eligibility for California Penal Code Section 1203.4
Unfortunately, suppose you were under conviction in the California state prison. In that case, you will not be eligible for expungement, unless that crime is one that would require a jail sentence under current criminal laws. Beyond that, there are also other felony offenses which cannot qualify for expungement as per California Penal Code section 1203.4, they include:
- Sodomy with a child
- Lewd acts with a child
- Oral copulation with a child
- Statutory rape
Steps for Filing an Expungement Petition in California
The process of filing an expungement petition is not overwhelming. However, you will need to retain a criminal defense attorney for legal guidance on every step you will take, including legal representation during expungement hearing. Typically, here are steps you or your attorney should take when filing a petition for expungement under California law:
Obtain the Necessary Forms
Obtaining necessary forms or documents for filing an expungement petition is perhaps the most challenging part when seeking this kind of post-conviction relief. You will have to obtain some essential forms from the prosecutor office and the court with the jurisdiction over your case. First, you need to determine the type of form you need as evidence for filing an expungement petition. For instance, if the judge grants you early probation termination, you will need to obtain these documents confirming early termination of your probation’ to act as evidence during expungement hearing.
Similarly, suppose you have participated in a pretrial diversion or other diversion programs for particular drug offenses. In that case, you should obtain necessary documents from the court with jurisdiction over your offense. You must also have a copy of your criminal record and affidavit (MC-130) that you can obtain from the California Department of Justice. These documents are essential to prove your eligibility for expungement under California Penal Code section 1203.4.
File Your Expungement Petition
After collecting every necessary document that you need, you should go ahead and file your expungement petition timely for it to be valid. You can file an expungement petition as soon as you complete your probation without a violation or after the judge grants you an early probation termination. However, you should prepare your necessary paperwork and notify the judge at least fifteen days before the hearing.
The expungement process for a felony offense can take a period of four to five months. The cost for filing an expungement petition in California ranges from $120- $150, which is worth it because the benefits of setting aside a conviction are life-changing.
Meet with Your Criminal Defense Attorney
The judge may expect you to attend an expungement hearing to prove why you are the right candidate for an expungement. For that matter, you must meet with your criminal defense attorney before the expungement hearing for the preparation of viable pieces of evidence to prove your eligibility and why you deserve this post-conviction relief.
Your attorney needs to be ready with all the pieces of evidence and documents pertinent to your case to counter all reasons the judge raises to deny your expungement petition. Therefore, it is crucial to inform him/her about the hearing schedule ahead of time for adequate preparation of essential evidence and documents to show your expungement eligibility during the hearing.
An expungement hearing usually takes place before a judge without the jury’s presence, and it can last less than fifteen minutes. Keep your time when attending this hearing and keep your criminal defense attorney by your side. Unless the court needs your presence, your attorney can attend the expungement hearing on your behalf.
The judge will consider the eligibility requirements under California Penal Code section 1203.4 before granting you an expungement of your criminal record, for example, the status of your probation. If the judge accepts your expungement petition, you will receive a particular signed order from the Superior Court Judge detailing the setting aside of your conviction and case.
If that happens, you will enjoy all the benefits of setting aside a conviction, including answering "no" whenever asked about your past conviction or criminal record. However, judges can use expungement records to enhance other sentences you are found guilty in the future.
If the judge denies your expungement petition, all hope is not lost. You can ask the judge reasons for rejecting your expungement petition and what you can do to make things right for eligibility in this post-conviction relief. Then, later after about six months, you can re-file an expungement petition again, having all the necessary documents and pieces of evidence to show the judge why you are the right candidate for this form of post-conviction relief.
All hope is not lost for you, even if the second expungement petition fails. In California, you can be able to pursue other forms of post-conviction relief to stay free from penalties and burdens arising from a conviction or a charge.
Other Forms of Post-Conviction Relief/Alternatives of an Expungement in California
You have rights for other post-conviction relief avenues if you cannot obtain the relief you need through expungement/setting aside a conviction. Your attorney will guide you through various options for seeking post-conviction relief in California for a fresh start that you need to pursue your dreams. Here are other post-conviction relief avenues you can pursue if an expungement petition is unsuccessful:
Sealing/Destroying Arrest Records
Criminal arrest records are usually public records, which means any person, including your prospective employer, can see it even if you did not receive a conviction for the offense. Fortunately, with the passing of the California Senate Bill 393 signed into law in 2017 by then-Governor Jerry Brown, you can petition the court to seal/destroy your arrest record under California Penal Code section 851.87 PC. California Penal Code section 851.87 PC allows the judge to seal or destroy a petitioner's arrest record under the following conditions:
- You must complete a pretrial diversion program if you were under arrest for a drug-related crime
- You have no other pending criminal charge
- The judge found you "not guilty" in a jury trial
- You were under arrest, but the prosecutor did not file your charges
Even if you have a juvenile arrest record, you can petition the court to destroy and seal the records as an adult or at least five years after termination of the juvenile case under the following conditions:
- You don't have a conviction record for a crime moral turpitude
- There is no pending suit
Suppose the judge finds enough reason to seal/destroy your arrest record. In that case, you will receive a Certificate of Factual Innocence, which means you do not have to disclose your information about the arrest to any person. This legal procedure will require you to retain a criminal defense attorney to prove to the judge that you are factually innocent. If you are factually innocent, you deserve relief from every burden arising from your arrest records as per California Penal Code section 851.87.
Applying for a Certificate of Rehabilitation (CoR)
A certificate of rehabilitation (CoR) is an order from the court with jurisdiction over your offense that declares you rehabilitated and for a good cause. You can apply for a CoR if you were under conviction for a felony offense, and you currently reside in California. A certificate of rehabilitation acts as a direct application of the Governor's pardon.
You can apply for a certificate of rehabilitation with the superior court as an alternative to expungement as long as soon as you complete your probation or sentence and you meet the criteria below:
- You have resided in California for the last five years
- You are not currently under arrest, charged, or on probation for another criminal offense
Unlike an expungement or record sealing, when you receive a CoR, you will continue answering "Yes" to all questions regarding your past arrest or conviction history. Nonetheless, a CoR will come with the following benefits:
- Right to vote
- You can serve on a jury panel
- Right to possess a firearm, although after receiving a gubernatorial pardon
You would be ineligible for a CoR if you were under conviction for particular sex crimes against children, in the military, on mandatory probation, or under a death sentence.
Application of California Governor's Pardon
If you are ineligible for a Certificate of Rehabilitation, you can still apply for a Governor's direct pardon even if you no longer live in California. Application for a governor pardon is a good idea to achieve relief from post-conviction consequences if you have served your sentence and rehabilitated for the better. Application forms for California Governor's Pardon are available online at the Governor's website. Alternatively, you can also write an application for the Governor's Pardon and send the letter to the Governor's office.
After completing your application, you must notify every district attorney in the county in which you were under conviction about your Intent to Apply for Executive Clemency of your conviction. If the Governor acknowledges your pardon application, you will enjoy most of your civil rights again, including:
- Firearm possession rights
- Voting rights
- The right to seek employment as a state or county parole officer
- Relief from your lifetime legal duty to register as a sex offender
- Right to apply for most professional licenses
- Relief from immigration/deportation consequences
- The right to participate in a jury trial
The Governor has the total discretion to decide whether to grant you the relief you are seeking or not. The Governor may choose not to grant you the pardon if you have two or more felony convictions in your criminal record.
Motion of Resentencing
Another way you can seek post-conviction relief is through a motion of resentencing. You can file a motion of resentencing to request the court to modify or reduce your sentence. A motion of resentencing typically seeks to reduce a defendant's prison time and other consequences that he/she is facing due to that conviction.
You can file a motion for resentencing yourself. However, it would be best to leave the work to your criminal defense attorney, who is aware of every legal formality to follow to make this petition successful. Filing a resentencing motion is a good idea when you are under a conviction for a misdemeanor or a felony offense where other post-conviction relief options are unsuccessful. In response to your request for resentencing, the judge can do either of the following:
- Change/modify your sentence
- Deny/revoke your request
- Postpone your request
The judge may choose to modify or reduce your sentence if he/she finds that there is a good cause to free you from the consequences arising from your sentence. To demonstrate a good cause to deserve this kind of post-conviction relief, you should consider filing a motion of resentencing under California Prop 47 or Senate Bill 1437.
California Prop 47 allows defendants under conviction for particular types of serious felonies offenses like theft to bring a motion of resentencing. Resentencing through Prop 47 can modify wobbler and felony offenses to a misdemeanor offense with less severe consequences to the defendant. On the other hand, you can also file a motion of resentencing under Senate Bill 1437 if the particular felony offense that led to your conviction is currently a misdemeanor under the new California law.
Even if you are not eligible for expungement in California, it is possible to seek post-conviction relief through the above options, which you could be eligible to restore some of your civil rights and other benefits like securing employment.
Frequently Asked Questions Regarding Setting Aside a Conviction
It is not uncommon for defendants with the interest of seeking post-conviction relief through expungement to ask many questions before filing this important petition. Here are some of the frequently asked questions about setting aside a conviction:
What Happens After Setting Aside a Conviction?
If the judge finds enough reason to expunge your conviction, you will enter a new plea of "not guilty," and your earlier trial's plea of "no contest" or "guilty" will be put aside. The expungement of your conviction does not clear your criminal record from the Criminal Justice database. Therefore, if you want to clear or seal your criminal records entirely, you must file another motion for record sealing.
Should I Disclose my Conviction History/Information to Anyone After Expungement?
The major benefit obtaining an expungement of your criminal record lies in being able to answer "NO" on every question regarding your past conviction. Most employers and landlords may want to check your criminal background before any agreement, but you have a right to say "NO" to those questions after setting aside a conviction. The only scenarios you can say you have had prior conviction is when you are:
- Applying for a job as a peace or law enforcement officer
- Applying for a state professional license
- Applying for employment to work with the California Lottery Commission
I Was Under Conviction for California Sex Offense, Can I Obtain a Relief for Lifetime Registration Responsibility as a Sex Offender Through Expungement?
Relief from your lifetime responsibility of registration as a sex offender is impossible under California Penal Code section 1203.4. However, you can seek this kind of relief by applying for a Certificate of Rehabilitation (CoR) or request a Governor's Pardon.
Find a Criminal Defense Attorney Near Me
Do not let a felony or misdemeanor conviction hinder you from progressing in life any further. California law provides you with many options to pursue that post-conviction relief you need to progress in life. At Orange County Criminal Defense Attorney Law Firm, we have top-notch expertise, and we are ready to help you on every step of setting aside a conviction to live a life without restrictions. Call us at 714-740-7848 from any location in Orange County and schedule an appointment with our profound attorneys.