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Mar 21, 2019

How to Expunge a Felony in California

If you have a felony conviction, you understand the devastating impact that a criminal record has on virtually every aspect of your life. A felony conviction can prevent you from getting a job or a loan. It can affect where you live and whether or not you can rent an apartment or buy a house. And it can hurt family relationships and your standing in the community. That’s why it’s worth your while to discover how to expunge a felony in California.


Eligibility for an Expungement

There are number of circumstances in which you may be eligible to expunge a felony in California. For example, if you were ordered to serve probation in lieu of going to jail or prison, that conviction could be eligible for expungement. The same holds true if you were forced to pay a fine or even if you did time in the county jail.

There are also specific circumstances under which you are eligible to expunge a felony in California. For example, you are eligible if you were sentenced to county jail and were placed on mandatory supervision by the probation department for part of your sentence, and it’s been at least a year since your sentence ended. The same holds true if you weren’t on mandatory supervision and it’s been at least two years since your sentence ended. However, to be eligible for expungement, you can’t currently be facing charges, be on probation, or be serving time for another crime.

If you are a former service member experiencing traumatic brain injury, substance abuse, PTSD, sexual trauma, or mental health issues and were granted probation for the felony, you could be eligible for a felony expungement in California. Your Contra Costa County criminal defense lawyer can demonstrate to the court that you are complying with the terms of your probation, that you’ve completed any court-ordered treatment programs, and that you have benefited from those programs.


Wobblers are Eligible for Expungement

In California, many crimes are considered “wobblers.” This means that they can be charged as either misdemeanors or as felonies. How a crime is charged can depend upon factors like prior convictions, but charging is also at the discretion of prosecutors.

In California, wobbler crimes include:

  • Battery against certain people, such as firefighters and police officers
  • Assault with caustic substances
  • Assault on a police officer with a stun gun
  • Vehicular manslaughter
  • Vehicular manslaughter while intoxicated
  • Unintentional arson
  • Burglary
  • Embezzlement
  • Forgery
  • Identity theft

If you were convicted of a felony for a wobbler crime and are on probation, your San Francisco Bay Area criminal defense attorney can petition for your early release from probation, and can ask the court to reduce your felony conviction to a misdemeanor and to have that misdemeanor dismissed. If you’ve completed your jail sentence, completed probation, or completed both, your Oakland attorney can petition the court to reduce your conviction to a misdemeanor and have it dismissed.


Convictions Not Eligible for Expungement

There are a number of felonies that are not eligible for expungement under California law. These include several crimes pertaining to sexual acts with children younger than 14, or with children who are 14 or 15 and are more than 10 years younger than you. The same holds true for convictions relating to the possession, publication, or distribution of child pornography.


Marijuana Felony Expungements

In 2016, voters approved Proposition 64, which both legalized the recreational use of marijuana and allowed for the reclassification of cannabis felonies. This means that, if you have a marijuana felony conviction that occurred prior to 2017, a Proposition 64 expungement might be possible.

If you were 21 years or older at the time of the offense, a conviction for possession or transport of an ounce or less of marijuana or eight grams or less of concentrated cannabis (BHO) can be expunged. A felony conviction for possession of more than an ounce of cannabis or more than eight grams of BHO can be reduced to a misdemeanor. If you were convicted of cultivating six or fewer plants, your record will be expunged unless you were required to register as a sex offender when you committed the offense, you had two prior convictions for cultivation, or you harmed the environment during cultivation. In addition, you are not eligible for expungement if you have what is called a “super strike.” A super strike is a conviction for a serious or violent felony punishable by imprisonment or death. These include certain crimes related to murder, vehicular manslaughter, weapons of mass destruction, kidnapping, assault, sexual assault, and child sexual abuse.

A prior felony conviction for intent to sell cannabis or BHO can be reduced to a misdemeanor unless you have a super strike, had two prior convictions, are required to register as a sex offender, sold to minors, or hired people under 21. A felony conviction of transportation of cannabis or BHO can be reduced to a misdemeanor unless you have a super strike, are subject to sex offender registration, had two more more prior convictions, or transported cannabis or BHO out of state. The same holds true for felony convictions of importing to California an ounce or less of marijuana or four grams or less of BHO, or of giving away more than an ounce of cannabis or more than four grams of BHO to someone over 21. Convictions of giving away less than that can be completely expunged, and the records sealed and destroyed.

Given the complexities of the law, it is worth your while to have an experienced Bay Area expungement attorney navigate the process. A separate Prop 64 petition must be filed for each conviction, and must be submitted to the court and to the prosecutor. The judge may ask for additional information in order to arrive at a decision. Your attorney can help determine whether or not you are eligible for an expungement or sentence reduction, but more importantly, can advocate on your behalf in the courtroom.

In the case of marijuana felony reductions and expungements, time is of the essence – particularly if you are in jail or prison for a marijuana conviction. Under Proposition 64, a sentence reduction carries a maximum of 180 days in jail or prison. A decision in your favor could result in your release from jail or prison, and in the reinstatement of your eligibility to vote. You may also have your gun rights restored.


Actions Your Alameda County Criminal Defense Attorney Will Take

When you retain an Alameda, Contra Costa, or Bay Area criminal defense attorney to help you expunge a felony in California, they’ll start by asking questions and doing research on your behalf. The information they’ll gather includes your case number, the date you were convicted, and the specific law or laws you were convicted of violating. If you entered a plea, your Bay Area attorney will determine whether that plea was “guilty” or “nolo contendere.”

Questions your Oakland defense lawyer will likely ask include whether or not you were ordered to serve formal or informal probation, and for how long. They’ll as if you were required to pay money as a condition of your probation and if you met all of your probation requirements. If you served time, they’ll want to know the name of the facility, your release date, and, if applicable, the date your parole ended. If you don’t have evidence of your criminal record, your lawyer will likely retrieve that information from California’s Criminal Record Review Unit or from the county where you were convicted.


The Outcome of an Expungement Petition

Once your Bay Area criminal defense attorney has all of the information they need, they will file a petition with the court to dismiss your conviction. If the court decides in your favor, it will withdraw your guilty or nolo contendere plea and switch it to a “not guilty” plea. It will then set aside your conviction and dismiss your case. As a result, your record will no longer list a conviction, and will instead list a dismissal.


The Value of an Expungement

When your criminal conviction is expunged, that means it is no longer public. Whether you pled guilty to a felony, a judge ruled that you were guilty, or a jury convicted you, that conviction is visible on your credit report and other public records. Expunging the conviction is like wiping the slate clean. Employers or potential employers in the private sector can’t ask you about dismissed convictions. While you have to answer in the affirmative on municipal, county, and state employment applications that ask if you’ve been convicted of a crime, you are allowed to note that the conviction was dismissed. For most types of jobs, a dismissed conviction is treated the same as having no conviction at all. The expungement should remove the record of your conviction from your credit report, paving the way for you to restore your credit, receive more favorable interest rates, and have opportunities to secure housing. It can also restore your gun ownership and voting rights.


The Importance of Contacting a Bay Area Attorney

If you have a felony conviction on your record, it’s critical to rely on the experience of a Bay Area criminal defense attorney to petition for an expungement. Using an attorney with a proven track record of securing expungements ensures that you will obtain the best possible outcome in California’s complex criminal justice system.

Even if you are not eligible for an expungement – because, for example, you served time in state prison – an Alameda County expungement attorney may still be able to help you. For example, if you’ve been out of prison and have lived in California for five years or more, you may be a good candidate for a certificate of rehabilitation. Your lawyer can make the case that you have achieved rehabilitation and, if you are granted the certificate, the Governor will consider you for a pardon. If a certificate of rehabilitation isn’t possible, then your attorney may be able to directly appeal to the Governor for a pardon.

A felony conviction shouldn’t continue to punish you once you’ve paid your debt to society. A seasoned San Francisco Bay Area criminal defense lawyer can expunge a felony in California and get the justice you deserve.


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