Expungement (PC1203.4/1203.4a)
The first thing that someone who wants to apply for an expungement needs to understand is that if your petition is granted under Penal Code 1203.4, your case is not sealed. A criminal record is not actually "expunged" under this statute. That term implies complete erasure, as if the case had never occurred. A more proper term is "dismissal". The conviction remains on your record for many purposes, including sex offender registration and immigration consequences. What the statute provides is, except as elsewhere stated, the defendant is 'released from all penalties and disabilities resulting from the offense'. There are numerous limitations to this relief.
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 on probation, or serving a sentence (including informal
probation), for
any
other offense, anywhere. (Penal
Code § 1203.4)
If you were denied probation, you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait for one year after their conviction before applying for expungement (Penal Code §1203.4a)
If your criminal case was reduced to an infraction, you are also eligible for an expungement under Penal Code section 1203.4a. Our office does not file infraction petitions.
What are the effects of expungement under PC1203.4/1203.4a?
It Will:
1. Result in a new entry in the court record showing the dismissal of the case;
2. Allow you to answer on many, but
not all, job applications that you have not been convicted.
If, however, you are applying for a government job or a job
which requires a government-issued
license, certificate,
or permit, or a job which involves a security clearance, the
conviction will be
discovered; in such cases, you should
disclose the initial conviction and its later expungement;
3. Prevent use of the conviction to
impeach you if you testify as a witness, unless you are being
tried for a subsequent offense.
4. If the conviction was for a
felony, expungement is the first step in obtaining a pardon.
It Will Not:
1. Remove the conviction from your
"Rap Sheet" - California and FBI criminal history records
will
still show the conviction and the later dismissal
"per PC 1203.4";
2. Reinstate the right to possess
firearms, if it was
taken away
(in cases such as Domestic Violence)
(reduction to a misdemeanor may
accomplish this if the offense is not one of violence;)
3. Remove the requirement to register as a
sex offender per PC290. If the expungement is granted,
registrants must then
complete and file paperwork requesting a Certificate of
Rehabilitation, when
eligible. A Certificate
of Rehabilitation will relieve specified sex offenders from further registration.
This is true for both
felony and misdemeanor convictions.
4. Allow you to omit the conviction from applications for government issued licenses;
5. Seal or otherwise remove the
court case file from public inspection - anyone who knows
where
to look will be able to find the court case file
(probation reports are in confidential files and are
not
subject to public inspection 90 days after sentencing;)
6. Prevent the conviction from being
used as a "prior" or "strike prior" to increase
punishment on a
subsequent conviction;
7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;
8. Prevent the conviction from being
considered and used to refuse or revoke government licenses
and permits such as real estate sales licenses, teaching
credentials, bus drivers licenses, security
guard
certificates, etc.; however, the expungement may reduce the weight
given the conviction
by the licensing agency.
9. Prevent the conviction from being used by INS for removal and exclusion purposes.
How is expungement accomplished?
The applicant must complete a
'Petition for Relief' form and submit it to the Superior Court,
where
the conviction occurred, for review and a decision by
the court. The Court charges a fee for filing
such a
petition. The fee is currently $120 for a felony case and $60 for a
misdemeanor or infraction
case, but the Court may waive the
fee in the event the petitioner establishes an inability to pay.
The Superior Court’s website
contains helpful information about the expungement process for
both misdemeanors and felonies. If you feel that you are unable to
pay the court fees, you can file
a 'Request to Waive Court
Fees", along with the petition. Some courts require a
"Financial Declaration"
instead. The Court will
make a decision on waiving the fees on the case. You can file these
forms
yourself by filling out the forms online, printing them
out, and mailing/taking them to the court address
on the
form. The court normally takes at least 8-10 weeks to make a
decision on a case.
Misdemeanors and infractions do not
require any other information other than what is on the the
form,
unless you violated
probation or committed new crimes afterwards. If you were
convicted of a DUI,
Reckless Driving, or Driving on a
Suspended License, you will also need to file additional paperwork.
Felonies always require additional
paperwork. A motion must be written and filed with your felony
petition.
A court hearing will be scheduled and you will
need to appear. You will need to go to your local law
library
to inquire about how to properly write the motion for
the court. If you have more than one case you wish
to
expunge, you should contact our office for assistance.
Expungement through the Office of the Public Defender
The Office of the Public
Defender can assist you with the expungement process, if you wish.
You will need to fill out the
application
form, then save it to your hard drive or
print it out. The exact
format is not important – just the answers to the questions.
There are several ways to submit the information"
1.
Save the completed form to your hard drive, open up your mail
server, and then attach the form
to the e-mail
message. You should contact our office first, to find out who to
send the e-mail to.
Click on the 'Contact
us' link to the left. If you know which court you appeared in, put
it in the
message. The e-mail will be
forwarded to the proper person and you will be contacted. If
you
have other convictions outside San Diego
County, be sure to mention it. If the case was in
Federal Court, you
cannot get an expungement.
2. Copy
the questions to the Windows clipboard and then paste the
information into an e-mail message.
The
questions could then be answered in the e-mail message itself and
then the
message can be sent to our office.
Again, contact our office as mentioned above.
3. Print
out a blank form. Fill out the information by hand and fax the form
to our office. Contact
the proper office to
find out their fax number, if you went through a branch courthouse.
If you are
unsure which office it should be
sent to, fax it to the Main Office number below.
The court charges a $60 fee for each
misdemeanor and infraction expungement and $120 for each
felony
expungement. These fees will
be paid to the court. It is possible to request a fee
waiver for these fees,
if you qualify.
DO NOT
send any money to our offices
. You will send it to
the courthouse after the
process is complete.
Older Misdemeanor Cases
Misdemeanor cases that are older than 5 years may be purged (destroyed) by the court at any time, depending on the charges. In some cases, it can be less than that. If your original court file has been purged, it is more difficult to obtain an expungement. You may need to contact the Department of Justice (DOJ) in Sacramento to obtain a copy of criminal history report ("CII" - Criminal Identification and Information"). The DOJ will give you materials to fill out and will only release the report to you upon proper identification (i.e. fingerprints). Contact our office to confirm your case has been purged before following this procedure. The DOJ charges you to receive the report. Getting LiveScan fingerprints or a fingerprint card done can also incur a fee. You can get information on the procedure by contacting the DOJ in a number of ways.
By Mail: California Department of Justice
RECORD REVIEW UNIT
PO Box 903417
Sacramento
CA 94203-4170
By Phone: (916) 227-3838
On-line: http://ag.ca.gov
Once you receive that report, you can forward a
copy to our office to assist with the expungement.
Keep
the original for your records.
Submit your completed application
form and other materials
to:
Department of the Primary Public Defender
Attn: Expungement Paralegal
450 "B" Street, Suite 900
San Diego, CA 92101
FAX: 619-338-4811 (Attn: Expungements)
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