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Jan 02, 2020

Expungement of Criminal Records in California – Penal Code 1203.4

In California, a criminal conviction has a number of serious consequences. For most people, a jail or prison sentence and fines are two consequences that immediately come to mind. Depending on the type of crime, there can be other immediate consequences. For example, being convicted of driving under the influence can mean attending a mandatory alcohol education program, installing an interlock ignition device in your vehicle, and having your drivers license suspended. Other kinds of convictions might entail paying victim restitution or performing community service. All of these reasons make it imperative to hire a Bay Area criminal defense lawyer as soon as you’re arrested. Having an Alameda County criminal defense attorney at your side can mean the difference between having the charges dropped and facing the consequences of a conviction. Although court-imposed sanctions are the first consequences that come to mind, they’re just the tip of the iceberg.


A Conviction’s Collateral Damage

In addition to the penalties and punishments imposed by the criminal justice system, there are a number of consequences associated with a conviction that people generally don’t consider. These include:

Criminal Record: A conviction represents a permanent stain on your criminal record. Anytime you’re pulled over or questioned by the police, they can run your rap sheet. If you have to submit to a background check, your conviction will show up.

Employment: In California, employers with five or more employees aren’t allowed to ask if you have a criminal record on an initial application. They can only run a criminal background check once they’ve offered you employment. Even then, they can’t outright deny you a job based on your criminal conviction; they have to conduct an assessment and link your conviction with the position being offered. For example, an employer could withdraw an offer of a job as a comptroller to someone who has an embezzlement conviction. Yet, even with the “ban the box” law in place, employers are known to find ways to deny jobs to those with criminal convictions.

Professional Licensure: Criminal convictions impact a number of professional licenses. This means that, if you’re a physician, attorney, or teacher, you may be denied a license if you’ve been convicted of certain types of crimes. Dentists, nurses, and pharmacists are among the other medical professionals that might be denied licensure due to a criminal conviction. Social workers, contractors, and accountants with certain types of convictions can also be turned down for professional licenses. The bottom line? If the crime for which you’ve been convicted is relevant to your profession, you may be denied a license or have that license revoked.

Voting Rights: In California, you cannot register to vote or vote if you are currently serving time in state or federal prison, or if you’ve been convicted of a felony and are serving a state prison sentence in a county jail. Your voting rights are also taken away if you are on parole or in jail for a parole violation.

Higher Education: Virtually every college asks whether or not you’ve been convicted of a crime. Answering “yes” doesn’t necessarily mean your application will be rejected, but an affirmative answer certainly doesn’t work in your favor and you will be asked to provide a written explanation. If you have a drug-related conviction or a conviction for a sexual offense, you may not be eligible for certain types of federal student aid.

Immigration Status: Depending upon the nature of the crime, a criminal conviction can result in deportation for asylum seekers and green card rejection for immigrants. Convictions for crimes that are considered to be serious – like those involving controlled substances, human trafficking, money laundering, murder, and robbery – are almost certainly going to negatively impact the immigration process.

Housing: While California law prohibits landlords from having policies that discriminate against people with criminal convictions, many do run criminal background checks on prospective tenants. If a landlord can assert that, because of your criminal conviction, you may pose a threat to other tenants or to the property, then you may be denied housing.

Gun Rights: If you’ve been convicted of a felony – whether in California or in another state – you are not allowed to possess a gun for ten years. If you have certain types of felony convictions – such as domestic violence – that gun ban is in effect for the rest of your life.

Children: If you’ve been convicted of certain types of crimes, you may lose custody of your children or lose the right to unsupervised visitation. A background check that shows a criminal conviction may prevent you from providing foster care to a child or from adopting a child.


Post-Conviction Expungement

Perhaps you didn’t have a stellar Bay Area criminal defense attorney by your side following your arrest, and you are living with a criminal conviction. All is not lost. Your Oakland criminal defense lawyer may be able to leverage Penal Code section 1203.4 to achieve expungement of criminal records in California.

What is expungement? It is the opportunity for you to go back to court after your conviction and ask a judge to dismiss your case. In essence, you take back your “guilty” plea or your plea of “no contest” and instead enter a plea of “not guilty.” Once your conviction is successfully expunged, it’s almost as though it never existed.


Expungement Eligibility

Expungement of criminal records in California under Penal Code 1203.4 isn’t available to everyone with a conviction on their record, but it there is hope for many people who have been convicted of misdemeanors or felonies. In order to be eligible for expungement, you need to not have served time in state prison. The exception to this eligibility requirement is if you served time in state prison prior to the enactment of Proposition 47, which California voters approved in 2014.

Under Proposition 47, certain offenses were reclassified from felonies to misdemeanors or from wobblers – crimes that can be charged as either misdemeanors or felonies – to misdemeanors. Those offenses include forging a check worth $950 or less, drug possession for personal use, receiving stolen property worth $950 or less, shoplifting property worth $950 or less, theft of property worth $950 or less, and writing a bad check for $950 or less. If you served time in state prison for any of these crimes prior to the implementation of Proposition 47, your criminal record may be eligible for expungement.

In addition to not having served time in state prison, you must have successfully completed any required probation for your conviction. Probation might include paying fines and restitution, performing community service, or attending mandatory classes. Typically, other conditions of probation include refraining from committing additional crimes while on probation and appearing for your court dates.

If you’ve had probation issues, expungement may still be a possibility. It’s important to speak with an experienced Bay Area criminal defense lawyer who can work with you to ascertain your eligibility for expungement. The court has considerable discretion in expunging records of those who have had a probation violation. Your Oakland criminal defense attorney can make the case that you deserve expungement because you have been an exemplary community member, you have or can obtain employment, and so forth. They may also argue that you mostly met the conditions of your probation, that the crime for which you were convicted was relatively minor, or that you don’t have a significant criminal history.

However, there are some crimes for which expungement isn’t available. For example, even if you didn’t serve time in prison, you are ineligible for expungement if your conviction related to sex offenses with minors.


The Expungement Process

If you are ready to pursue expungement, you have a few options. You can file a petition with the court on your own, you can participate in the Clean Slate Program offered by the Alameda County Public Defender’s Office, or you can connect with a seasoned Bay Area criminal defense attorney. The reality is that filing for expungement on your own is a high-wire act, since it requires knowledge of the law and the ability to present a compelling case. While the Clean Slate Program is important, the Alameda County Public Defender’s Office handles more than 1,200 cases a year and they only see new people through a walk-in clinic. In contrast, an Oakland criminal defense lawyer has the time and the experience to present your case and achieve the best possible outcome.

If you have a misdemeanor or felony conviction on your record, your Bay Area criminal defense attorney will file paperwork with the court to grant a California expungement under Penal Code section 1203.4. They will gather all of the necessary information to present a compelling case. If you have a felony conviction on your record for a wobbler – a crime that could have been charged as either a misdemeanor or a felony – your attorney will likely first petition the court to have your felony conviction reduced to a misdemeanor conviction. After that, they will file for an expungement.

It is up to the judge whether or not to grant your expungement. They have considerable latitude, which is why you need an experienced Alameda County criminal defense attorney by your side. If your expungement moves forward and your conviction arose after pleading “not guilty,” then the judge will set aside your “guilty” verdict. If you previously pleaded “guilty” or “no contest,” then the judge will allow you to withdraw your plea and instead plead “not guilty.”


The Impact of An Expungement

Expungement of criminal records in California under Penal Code 1203.4 conveys a number of benefits. The court record reflects that your case was dismissed, which means that you can honestly say on your job or housing application that you don’t have a conviction on your criminal record. There are some government licenses and some types of government jobs – such as those requiring security clearances – where your prior conviction will surface, so it is best to discuss your expungement in those instances. But for other purposes, your criminal conviction is no longer an anchor weighing you down.

If you are an immigrant seeking amnesty or a green card, an expungement can put you back on the path to remaining in the United States.

Your gun rights aren’t automatically restored once your criminal record has been expunged. However, if your Bay Area criminal defense attorney is able to successfully petition the court to reduce your felony conviction to a misdemeanor prior to expungement, your ability to possess a firearm may be positively impacted.

It’s important to note that an expungement can still be used against you should you be convicted of another crime, either as a strike against you or as a sentence enhancement.

To restore more of your rights following your expungement, your Bay Area criminal defense lawyer can work on your behalf to obtain a California Certificate of Rehabilitation. This can remove the roadblocks to licensure from state agencies, and for some, may remove the requirement to register as a sex offender.

If your or a loved one’s criminal conviction is holding you back, you should speak with an Alameda County criminal defense attorney. They can review your case and determine whether or not you are a candidate for expungement. If so, they can work tirelessly on your behalf to have your conviction set aside so that you can move on with your life.





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