Expungement

Reckless behavior as a teenager is common. At a young age, making uninformed or unwise decisions can lead to unforeseen consequences that will affect your future. No one wants an underage drinking violation or similar offense to follow them through life. While it can be easy to say “I was young and made a bad decision” when there is no official record, think of having to explain those actions during a job interview, or while trying to apply for an apartment in a new city, or worse, applying for college. It is important to know what you can do to get those pesky juvenile records sealed.

Petitioning the Court

In order to begin the process to seal juvenile records, you must first meet certain eligibility requirements to move forward. These requirements are:

  • You are at least 18 years old,
  • It has been 5 years since the case was closed, or
  • 5 years since your last contact with probation and you are deemed rehabilitated by a judge.

If you meet these qualifications, you must contact your county for the forms necessary to request sealing. It is important to list every instance you want sealed. The turnaround time for sealing a record is about 90 days if your records are in just one county. If the records are in multiple counties the turnaround time can be up to 180 days. At this point in the process, your request may be approved right away. However, but at times the courts may decide to have a hearing regarding this matter, and they will notify you in writing.

Denial

You may be denied the right to seal your records if:

  • You are convicted of a serious offense (listed in Welfare and Institutions Code 707b) above the age of 14,
  • The record is for an adult conviction in a criminal case,
  • You are convicted as an adult for an offense of moral turpitude (these crimes involve sex or drugs, if they are violent, or in some way run afoul moral standards).

Sealed Does Not Mean Eliminated

Even if your records do get sealed, certain entities may have access to them, in spite of the sealed status. These entities include:

  • I nsurance companies:Car insurance companies can view any records you had with the DMV
  • Federal institutions:The federal government can access your sealed records for military enlistment or security clearance positions
  • The court system:The courts may view your sealed records in the event that you are a witness in a defamation case, or to decide if you are qualified for extended foster care after age 18
  • Prosecution:Prosecutors can look into your records to see if you can be entered into a deferred entry of judgement program
  • You:You can request that the court unseal your records if you need access to them

Other than these particular occasions, in most cases, after your record is sealed, you will legally be able to treat those offenses as if they did not happen. This is important when you apply to college, jobs, and other positions.

Finding Factual Innocence

Imagine being accused of a crime you did not commit, and having the arrest and criminal records come up constantly during employment, housing or other screenings. An arrest record, or a record of criminal charges can be a nuisance, even after the charges are dropped or if you are acquitted. There are certain processes to get these charges sealed or expunged, but the existence of a record of criminal charges and/or an arrest can continue to be bothersome. The State of California offers one such method of eliminating these burdensome records: a motion for Factual Innocence.

Motion for Factual Innocence

A motion for Factual Innocence is defined in California Penal Code 851.8 . What this motion actually does is a more thorough elimination of reputation damaging records that did not result in convictions. This can result in law enforcement and courts having to physically destroy the records of your arrest and charges, effectively eliminating the possibility of future employers digging up any unnecessary unpleasantness.

Certain conditions create eligibility for this motion. You can file for Factual Innocence if:

  • You were arrested, but not charged with a crime
  • You were arrested and charged with a crime, but the charges were dismissed
  • You were arrested and charged with a crime, but you were found not guilty at trial

In all intents and purposes, Factual Innocence is really like clearing one’s name. A “not guilty” verdict does not eliminate the fact that at some point, a police officer suspected you, arrested you, and pressed charges against you for this crime. Records of these events tend to come up on job applications, apartment and housing community applications, and anything involving a background check, in spite of your assumed innocence.

The Process

Merely filing for the motion, of course, does not grant immediate innocence. Your lawyer must prove that there was no reasonable cause to believe that you had committed the offense. The courts will present an opposing case, and if there is enough evidence that could have potentially produced a guilty verdict from a jury, the motion will fail. While this is not necessarily “guilty until proven innocent,” this standard of proof can present a challenging obstacle to overcome, especially if there was a trial that resulted in an acquittal. For instance, the prosecutor may have enough evidence that a different jury could have produced a guilty verdict. Having “no reasonable cause” means that no reasonable person could have possibly thought that you would be guilty of the crime.

The Results

If your motion is a success, any record of your arrest and charges will disappear. The first step is for the courts and law enforcement to seal their records for a three-year-period. During this time you may to answer that you have not been arrested or charged on applications. The courts and law enforcement will have to say that there is no record of either an arrest or a charge. After this time period is up, these records will be destroyed, completing the full process of proving your factual innocence.

Expungement under Penal Code 1203.4

Expungement is the process by which a former charge, conviction or arrest is “cleaned up” from a criminal record. In essence, California’s expungement laws allow a charged to be dismissed, but not removed. If your motion to expunge your records is approved, everything that you wished to be dismissed will be updated in your county’s records. This will allow you to note on any applications for jobs or housing that you have not been convicted of a crime. Exceptions to this are government jobs that require security clearance or certification.

If you have a conviction on your record, you are eligible for expungement under 1203.4 if:

  • You have been granted probation and completed all the terms of it and are no longer on probation
  • You are not on probation or serving for another offense anywhere else
  • It has been one year since your conviction

What a Dismissed Charge Under 1203.4 Means

A charge dismissed under 1203.4 is not a “true” erasure of your record. For purposes such as sex offender registration and government security clearance records, your criminal record will remain, but it will be updated to show that charges have been dismissed under 1203.4 on every instance that has been approved. What this means for you is, again, that you can answer “no” to any questions about convictions. It also means that the conviction cannot be used to impeach you as a witness unless you are being tried for a subsequent offense. Expungement is also the first step for getting a pardon in a felony conviction.

Expungement is not:

  • removal or deletion the criminal record from California or FBI databases
  • a reinstatement of your 2nd amendment right (if it has been revoked due to a domestic violence or other charge)
  • a waiver on sex offender registration, but if an expungement is given you can file for a Certificate of Rehabilitation if you are eligible to prevent further registration
  • permission to answer no about your conviction when applying for a government license
  • removal of the conviction from consideration as a prior offense on a subsequent conviction
  • removal of the conviction from consideration for revocation of a government license

What is the Process?

You must file a “Petition for Relief” form with the Superior Court of the county where your conviction occurred. This will be reviewed and decided by the court. You will also be charged a fee by the court for doing filing, and the dollar amount varies depending on the county. Court fees can be waived, if approved through application. After you have submitted your application, the process for approval will take approximately 8-10 weeks. Misdemeanor and infraction offenses do not require additional paperwork unless you have committed other crimes after your conviction. Felonies require court hearings and a motion for the court.

If you are in need of legal assistance with your expungement process, please don’t hesitate to contact us today.

Reduction of Felony to Misdemeanor under Penal Code 17b then Expungement 1203.4

A felony conviction is incredibly damaging to one’s reputation. Even after serving your sentence, it can be hard to find a job or a place to live. On top of that, a felony conviction means you may be unable to own or use firearms, apply for certain government licenses, or even be considered for some jobs. It may feel like you have no options, and be stuck in stagnancy forever. It is possible to avoid this feeling, by reducing your felony charge to a misdemeanor charge. Once this is done you can follow the process of having your misdemeanor expunged, and begin the first step to getting your life back on track.

Eligibility Requirements

Under California Penal Code 17b, in order for a felony conviction to be changed to a misdemeanor, it must meet the following requirements:

  • The offense must be defined as something that can be eithera felony or a misdemeanor
  • You must have been granted probation
  • The offense did not put in you state prison

Reducing a conviction can occur at the conclusion of the preliminary hearing or at the time of felony sentencing. If sentencing has happened already and you are serving felony probation,  you can pursue felony reduction once probation has ended. Once you petition the court to reduce your felony to a misdemeanor, the judge must then make a decision based upon your case. Once the court approves your reduction it will be as though you had originally been convicted a misdemeanor-level crime.

What Happens Next?

The next stage in the process, naturally, to follow the steps toward expungement of a misdemeanor. However, because it was a felony act, some penalties and rules will carry over. Some of the felony punishments that will remain include:

  • Violent or serious felony charges will still be considered a strike under the “Three Strikes Law”
  • Registration as a sex offender
  • If the conviction is for a federal crime as well, it may still be viewed as such on the federal level
  • Certain government licensing entities may still consider it a felony charge

Outside of those options, the conversion to a misdemeanor is the first step to clearing your name. Following the felony reduction procedures, you can begin the process of expunging the misdemeanor, which carries a different set of eligibility and processes.

If you are in need of legal assistance through the process of clearing up your records, please don’t hesitate to contact us today.

Certification of Rehabilitation

Conviction in the case of a felony can carry extremely damaging effects to one’s reputation. A felony on your record can prevent you from voting or owning firearms. We have discussed the processes of reducing a felony to a misdemeanor, and then having that misdemeanor expunged, but sometimes you may not have the opportunity to turn that felony conviction into a misdemeanor. What options do you have at that point? Will this be on your record forever? California actually offers a process for Certification of Rehabilitation. This is a court order stating that you are now rehabilitated per the State of California. It is the first step in attempting to obtain a pardon for a felony crime.

Am I eligible?

In order to be eligible for a Certificate of Rehabilitation, you must:

  • Have been convicted of a felony
  • Have served time in California State Prison
  • Have completed your sentence or are out on parole
  • Have lived in California for five years or more
  • Have not been in a detention facility since your release

Additional years may be added on for crimes such as murder kidnapping, assault, and sex offenses.

Sex offenders who have been able to get a misdemeanor charge dismissed per 1203.4 can apply for a Certificate of Rehabilitation if they have met the requirements above as well.

You are not able to apply for a Certificate of Rehabilitation if:

  • You are in the military
  • You are convicted of a misdemeanor (unless it is a misdemeanor sex offense)
  • You have a death sentence
  • You are convicted in sex crimes with a minor

The Process

If you meet these requirements and sufficient time has passed, depending on your charges, you may file a petition to receive a Certificate of Rehabilitation. It is advisable to have a lawyer represent you in this process, as it is lengthy and requires potential hearings, in addition to notification of the district attorneys for each county your felony was committed in, as well as the office of the governor.

What Happens Next?

As soon as a Certificate of Rehabilitation is granted, it is immediately sent to the Governor’s offices. Your certification is also an application for a gubernatorial pardon. At this point, the Governor does not require any further research or investigation and may issue you a pardon, unless you have been convicted twice of any felony. If this is the case, then you will need the recommendation of the California Supreme Court. If you are granted a pardon, you will regain your rights to vote and to own firearms. The only exception to this is if your felony conviction involved the use of a dangerous weapon or firearm. The pardon, however, is not an erasure of the conviction records, it is meant to be a restoration of rights you had lost after your conviction. You will still be required to register as an ex-felon, and you may need to fill out that you had been convicted as well. In certain, rare cases, you may not need to continue to register as a sex offender. In addition, your felony conviction is not to be a factor in applying for a professional or a business license.

Pardon

After a conviction, you will experience a loss of certain rights. For instance, convicted felons do not have the right to own firearms. We have covered going through the process of obtaining a Certification of Rehabilitation and what it entails. The final step in the process to restoring true citizenship is applying to obtain a gubernatorial pardon. A pardon is an award or honor issued by the Governor of California that effectively restores the rights lost to you after your felony or misdemeanor conviction.

The Process

Luckily, the State of California will immediately consider anyone who is able to obtain a Certificate of Rehabilitation for a pardon. Once a Certificate of Rehabilitation is awarded, the awardee is automatically an applicant for a pardon. This does not guarantee, however, that a pardon will be granted. Another method of requesting a pardon is by applying for one directly. This is a process mostly used by people who have committed a crime in California but currently reside out of state, or by people who are not eligible for a Certificate of Rehabilitation because of their sex offender crimes. The application can be obtained directly from the governor’s website, however, it is recommended to seek aid from an attorney as this can sometimes be a lengthy and multi-step process.

Once the application for a pardon or a Certificate of Rehabilitation is received at the governor’s office, the review of the application will begin. Your application may be forwarded to the Board of Parole Hearings, who will then make a recommendation as to whether or not this pardon should be granted. If you have been convicted on more than one felony offense, you will need the recommendation of California Supreme Court. Once the application has been received, there is no set time period on when or if the pardon will be granted. However, if you are granted the pardon, you will be notified.

What Happens Next?

It is very important to remember how a pardon actually functions and what it does or does not do for you. The first thing to remember is that being granted a pardon is not the same as having your records sealed or expunged. A pardon is a court record that states that the governor has pardoned you for your crimes and you have your full civil rights restored. What that means is that you can now vote, participate in a jury, own firearms (unless the conviction involved a dangerous weapon), and be considered for positions such as parole agent or probation officer. You will still have to answer in the affirmative that you have a conviction if asked on an application for employment or housing. The conviction will still be on your record as a prior conviction if you commit another crime.

Pardons granted from the Governor of California do not carry over in the event of a federal offense conviction.