Tips To Get An Expungement

California Penal Code 1203.4

Expunge Your Record

Tips to Get a Misdemeanor Expungement

If you have been convicted of a misdemeanor in California, you may be worried about being able to get a job or rent an apartment because a conviction is on your record. A procedure called “expungement” under California Penal Code 1203.4 pc can allow you to have a misdemeanor conviction removed from your record in California.

Expungement is a process where you petition the court to:

  • Step (1) Reopen a criminal case
  • Step (2) Get the conviction dismissed,
  • Step (3) then get the court to close the case.

It is easier to get a misdemeanor conviction expunged than a felony. A misdemeanor is any offense for which the maximum jail time is one year and/or a fine of up to $1,000.

There are also numerous offenses that are “wobblers,” wherein the prosecution can choose to charge you with either a misdemeanor or felony, depending on the facts and circumstances of the offense and your prior record. 

Conditions For Expungement
  1. You completed your sentence and all conditions of your probation including payment of all fines and restitution and completion in court-imposed programs or classes
  2. You are no longer on probation
  3. You are not currently serving another sentence for any other offense
  4. You have not been charged with another criminal violation
  5. At least one year has passed since the court entered judgment in the case for which you are seeking the expungement

Another condition is that you have not have served state prison time, but that only applies to felony convictions. However, there are certain vehicle code violations that may not be expunged as well as serious sex crimes committed against minors. 

Steps To Obtain An Expungement

Your first step in obtaining an expungement once you have met the above criteria is to obtain a copy of your criminal record from the California Department of Justice. You will then have to obtain a form called a CR-180, Petition for Dismissal. When filing the petition, you need to submit a copy of your criminal record along with an affidavit (MC-130), in which you set forth in detail the reasons why you have a need to obtain an expungement.

  • You have been continually turned down for suitable employment
  • You have difficulty finding an apartment to lease once your conviction appears during a criminal background check
  • You have continued your education or completed job training but your conviction is presenting roadblocks 
  • You wish to obtain a professional or state license—law, real estate, etc. 
Court Filing Fee

Your petition and these forms are to be filed in the county where you were convicted. The court filing fee depends on the county, but fees range from $120 to $1501. Some cities such as Anaheim will charge an additional city fee. If you are indigent, you can request a fee waiver. 

Still On Probation

If you are still on probation, your attorney can also file a motion for early termination of probation so long as you demonstrate you have met all conditions of your probation, have no violations, and have remained law-abiding for at least one year since your conviction. 

Once the court issues the order, it is sent to state databases, the FBI, and other agencies for them to remove your record of conviction so that any public criminal background check will not reveal the conviction. This can take several months. 

How to Get a Felony Expunged

Felonies are offenses for which you may be incarcerated for more one year. This includes aggravated assault, robbery, grand theft, homicide, insurance fraud, most sex offenses, a 4th DUI within 10-years, embezzlement, possession of a controlled substance with intent to sell, and most firearm offenses. There are also “wobbler” offenses as noted above where the prosecution may elect to charge as either a misdemeanor or felony, such as an offense where the crime is punishable by prison or a term of not less than 365 days in jail. 

However, felonies can be expunged so long as you meet the above eligibility requirements and you did not serve time in state prison. 

Proposition 47 Exception to State Prison Time Served

However, there is an exception to the state prison disqualifier if the defendant could have been sentenced to county jail under Proposition 472. To be eligible, you must show the following:

  1. The offense must be one that is currently punishable in county jail
  2. At least 2-years has passed since you completed probation
  3. You are not under supervised release
  4. You are not currently serving time for any other offense
  5. You are not currently on probation for any offense
  6. You are not currently charged with any offense

The process for obtaining an expungement under Penal Code 1203.42 is to submit a copy of your criminal record and file the CR-180, Petition for Dismissal. At this point, the court will set aside your guilty or nolo contendre plea and enter a not guilty plea. If convicted by a judge or jury, your guilty verdict will be set aside. 

The court will then dismiss the charges against you. You will be entitled to the same benefits as a regular expungement. 

Process of Obtaining an Expungement

The procedure for obtaining an expungement of a felony conviction is similar to that for a misdemeanor. If you violated a condition of your probation and had to serve time as a result, then you will face some difficulties. However, the judge has discretion to still grant your petition in the interests of justice, provided the violation was not a serious one and you did not serve state prison time as a result. You will have to demonstrate that you have been law-abiding for a period of time and that there are good reasons for the judge to exercise his/her discretion in your favor. 

Since you cannot obtain an expungement if you are still on probation, you can have your attorney move for an early termination of probation. If your case was a “wobbler” and you convicted or pled guilty to the charge as a felony, your attorney can also move the court to reduce the charge to a misdemeanor before it is expunged. The benefit of this is that it will restore your 2nd Amendment right to own and possess firearms. 

To begin the process, obtain a copy of your criminal record from the California Department of Justice and file it with the CR-180, Petition for Dismissal. You will need to complete an affidavit (MC-130), in which you set forth in detail the reasons why you have a need to obtain an expungement. Once your petition is filed and all conditions are met, the court is obligated to issue the expungement order.

Misdemeanor Expungement FAQ’s

What can and cannot be expunged?

Any offense for which you served state prison time may not be expunged. Otherwise, most offenses for which you were only placed on probation or served in county jail are eligible. However, if you meet the qualifications under Proposition 47 whereby you could have been sentenced to county jail, then you could obtain an expungement provided other conditions are met. Other offenses ineligible for expungement include:

  • Any offense involving child pornography
  • Committing a lewd act with a minor3
  • Sodomy with a child4
  • Oral copulation with a child5
  • Statutory rape between person over the age of 21 and person under the age of 166
  • Forcible penetration with a foreign object7
  • Lascivious acts with a minor as felony or misdemeanor8
  • Fail to stop and submit to vehicle inspection or for unsafe condition endangering a person9
  • Rape10

What do I need to get a misdemeanor expunged under penal code 1203.4 pc?

If you want to get a misdemeanor expunged you have to show that you complied fully with the court’s sentence, are not currently serving another sentence, are not currently charged with another offense, and that it has been 1 year since the court entered the judgment in your case.

Can you have a felony expunged in California?

Yes, but so long as you meet the following:

  1. You did not serve time in state prison
  2. You completed probation and all conditions imposed on you
  3. You are not currently on probation
  4. You have not been charged with another offense
  5. It has been one year since your arrest

There are certain serious offenses that are ineligible regardless if you served state prison time such as forcible sex crimes and sex crimes involving minors. 

Can you expunge a strike in California?

Yes, but only if you did not serve state prison time for the offense, which is unlikely. And even if you are able to have it expunged, it counts as a strike if you are subsequently convicted of a serious crime. A second strike will double your sentence and a third will result in a sentence of 25 years to life. 

If I was sentenced to prison, can I get my conviction expunged?

People who have served time in the California state prison (because of a court sentence or because they violated their probation) cannot expunge their convictions in California. These people must apply for a certificate of rehabilitation or a Governors pardon.

How long does it take to get your record expunged?

Once your petition is filed and there are no objections to it, you can expect to receive the order of expungement within 2-3 months. It may take a few more months before criminal databases will remove your record of conviction. 

What if I can’t afford to pay the fee to file an expungement petition?

You can request a fee waiver and you must do this by completing a Request to Waive Court Fees Form (Form FW-001).

Do you have to disclose an expunged record?

You are only required to disclose an expunged record if:

  1. Applying for a professional or state license
  2. Applying for public employment
  3. Running for public office
  4. If contracting with the state lottery commission

Otherwise, you can deny under oath that you were ever convicted.

Do misdemeanors show up on a criminal background check?

Yes, any misdemeanor will appear on a background check so it is essential that you contact a defense attorney to review your eligibility and to have it expunged if you meet the criteria. 

What will show up on an employer background check after an expungement?

What appears on a background check entirely depends on the type of background check that is being performed. If the employer does a standard commercial background check, the chances are the conviction and the case will not appear on the background check. If the employer requires you to submit fingerprints and provide a copy of your CA Department of Justice report, your report will show that there was a case in the past. However, it will also show that your case was dismissed and there is no convictionon your record.

Choosing an Attorney to Process Your Expungement

The state of California has implemented many tough laws, and a misdemeanor conviction may affect someone’s ability to get a job, attend school or find housing. If you have been convicted of a misdemeanor in California, you may want to get the conviction expunged so that it is removed from your record.

At the Aizman Law Firm, our experienced attorneys have a 100% success rate at having misdemeanor petitions granted and we can help you with the process of getting a felony conviction expunged from your record. If you need to speak to an attorney about your case or about getting a conviction expunged from your record, please call our office at: (818) 351-9555

Get Legal Help

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Footnotes

  1. California penal Code 1203.4 – (d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision. See Code []
  2. Penal Code Section 1203.42 []
  3. Penal Code 288 []
  4. Penal Code 286(c). []
  5. Penal Code 288a(c). []
  6. Penal Code 261.5(d). []
  7. Penal Code 28(j). []
  8. Penal Code 288(c). []
  9. Vehicle Code Section 42002.1 []
  10. Penal Code 261 []

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