How to Expunge a Conviction from you California Criminal Record
Being convicted of a criminal offense in California can have serious repercussions. Some convictions will make it difficult to impossible to find suitable employment. A conviction may mean you are facing hard jail or prison time, and if not a citizen, you could be facing deportation.
Having a criminal record can make your life difficult at many levels, but you do have the recourse of getting your adult records expunged. This process is a means to clean up your files and limit the information that could show up on a background check done on you. A criminal defense attorney can guide you through the process as they understand California law and the court system.
What is an Expungement?
An expungement or dismissal is a process of having your adult records limited as to what information can be obtained if someone needs to conduct a background check on you. Dismissal is a better term for this process as your criminal record is not entirely erased as if it never existed.
Dismissal is a more appropriate term as the steps for this involve the courts reopening your case and the 'finding of guilt' is withdrawn. In place of a guilty verdict, a 'not guilty' plea is entered, and the court is then able to dismiss your case. Having your case dismissed does not mean the offense is completely erased from your files, it just shows your conviction was dismissed.
Some public agencies can still see the charge on your file, and it can be used for immigration as well as for sex offender registration. The conviction can be hidden from certain people such as credit agencies, some employers and some landlords. If a conviction has been expunged, private employers will not see it on your files when they run a background check.
Crimes that Cannot be Expunged
There are some crimes that once you are convicted, you can never expunge them from your records. You can file for a Certificate of Rehabilitation if you do not qualify for expungement. These are convictions you cannot have expunged from your record:
Under California Penal Code:
- 261.5- covers 'statutory rape' which occurs when a person engages in sexual intercourse with another who is under the age of 18.
- 286(c)(2)(B)- committing sodomy with another person under the age of 14 and the act is against the other's will. The act is performed using force, menace, duress, or violence or there was an immediate fear inflicted along with the unlawful bodily injury.
- 288(a)- is a felony conviction for lewd or lascivious acts with a child.
- 288a(c)(2)- is a felony conviction for oral copulation by duress, menace, force or violence. The victim sustained immediate fear and unlawful injury to their body.
- 288.5(a) covers continuous sexual abuse of a minor. There have been three or more acts of sexual abuse performed with a child under the age of 14. The child can be either in the home of the abuser or someone they have recurring access to.
- 289- is the crime of forcible penetration with a foreign object.
- 311.1(a)- is a crime of knowingly sending child pornography for either distribution or to sell. This code covers sending through the internet.
- 311.2(b)- under this penal code you will have been proven guilty of offering to distribute or possessing with the intent to distribute obscene materials.
- 311.3-is the sexual exploitation of a minor child.
- 311- covers child pornography and the involvement of any person under 18 years of age where you have distributed material showing them engaged in sexual activity
Under California Vehicle Code:
- 2800-covers disobeying a police officer
- 2801- failing to stop and submit to an inspection of your vehicle which a police officer feels is unsafe or endangering others
You are also not eligible for expungement of records if you have a current case in the courts that you are being prosecuted for, or you are currently on probation, post-release community, mandatory supervision, or parole. You also cannot file a request for expungement of records if you have been sentenced to state prison.
Crimes or Convictions that May Be Expunged
If you have been convicted of a misdemeanor and denied probation, or if you have been convicted of an infraction, you may file to have your record expunged.
- Misdemeanor in California is defined by the sentence you receive. There are various types of misdemeanors including simple assault, petty theft, disorderly conduct, vandalism, and prostitution. Check with your criminal defense attorney for others that may qualify you for expungement of records.
- An infraction is a public offense, but not always considered a crime. An infraction is not punishable by imprisonment but may involve a fine. If you are in public office, an infraction charge could have you removed from your position.
Before filing for an expungement, you must wait one year after your conviction, and you cannot be on probation or any other form of supervision for another crime. If you served time in a county jail for a conviction and not a state prison, you have to wait one year before requesting a dismissal or expungement.
If you've served time in a state prison, you can only request a dismissal or expungement if your case can be reclassified as a misdemeanor, or if you were sentenced before October 1, 2011, and the conviction would now involve time in a county jail versus a state prison. If your conviction does not fall under any category which would qualify for an expungement, you can file for a Certificate of Rehabilitation.
What is a Certificate of Rehabilitation?
A COR (Certificate of Rehabilitation) is the determination by the courts that you have been rehabilitated from the crime which you were convicted. This process is used to clean up a record of someone who has been convicted of a felony and sent to state prison. If you have been convicted of a limited number of misdemeanor sex offenses, you may also apply for a COR.
The COR will not seal your records or remove any of the convictions from your file; it is intended to help you apply for employment, find housing, or apply for a professional license. If you meet the legal requirements and demonstrated rehabilitation, you can apply to the Superior Court where you live for a COR.
How Does an Expungement Change My Record?
Having a conviction expunged means a new entry is made on your records showing the case against you was dismissed. This change allows you to check that you have not been convicted of a crime when applying for employment. An expungement may also open eligibility for student loans if you were once denied due to a drug conviction.
If you apply for a government job, however; the conviction will be discovered, so you should disclose this information on your application. Finding the expungement records on your files is possible. Anyone who understands how to look for this type of information will be able to see it on your records.
What Doesn't an Expungement Cover?
Under California Penal Code 1203.4, California and FBI criminal history will still appear on your records with the dismissal information. You will not be allowed to possess firearms and will be required to register as a sex offender if your conviction fell under Penal Code 290. A COR may relieve some sex offender from future registration, check with your criminal defense attorney for further information.
An expungement will not remove your conviction record if applying for public office or government issued licenses and does not prevent the crime from being used in the 'strike prior' when receiving increased punishment through the California Justice System.
Receiving an expungement of a charge will not be considered if you were refused or had a government license revoked. These licenses and permits include real estate license, bus driver’s license, teaching license, security guard certificates, and other public safety positions. The expungement will also not be considered when conviction resulted in deportation.
How to File for an Expungement
Your first step should be to secure your criminal defense attorney. They understand California law and know their way around the court system. Knowing whether or not your conviction qualifies for an expungement involves knowing the California legal system.
Certain petitions for expungement are complicated, and the judge may need additional information from you before reviewing your case. Having an attorney working with you to research the records, write the petition, motions and declarations will make your case stronger. They are also able to appear in court with you and assist in your argument for dismissal.
Your criminal defense attorney will have you file a Petition for Dismissal (Penal Code 1203.4- 12034a)which is then submitted to the Superior Court along with all supporting documents proving to the courts you are eligible for expungement. This petition and all the supporting documents will also have to be sent to the prosecuting agency.
When will the Expungement Appear on Records?
The expungement process can take from 30 days to 4 months to go through the system. It depends on factors such as which courthouse your case is heard in and if your case involves a misdemeanor or a felony, also whether or not a court hearing will be required.
What Determines if a Court Hearing Being Required?
If you are requesting expungement of a misdemeanor conviction; chances are you will not be required to appear at a court hearing. The judge will look over the documents you present showing why you feel an expungement qualifies in your case and issue a court order.
If you are requesting an expungement or dismissal of a felony conviction, you will be required to make a court appearance. If you are unable to appear in court, you can present your attorney with written permission to appear on your behalf.
Is There a Time Limit on Expunging Records?
The court can purge or destroy any misdemeanor charges that are five years old or older at any time, depending on why you were charged. This purge does not mean it can't be seen on your records by those looking for this type of information.
If your file has been purged, it will be more difficult to request an expungement. A request to the Department of Justice in Sacramento will have to be sent asking for a report on your criminal history. This record will be needed to petition for expungement.
The Department of Justice can provide you with a record of your criminal history. It is recommended requesting this report if you've had multiple convictions. This history shows all of your cases and what happened to them in the California legal system. If a conviction shows up on your criminal history record, then you know it will show up whenever a background check is requested on your files.
Requesting a copy of criminal history can also provide you a chance to correct any errors that may appear, and provide you with a copy of what your background check is going to show. Knowing ahead what will appear on your file gives you a chance to be prepared to answer any questions that may be asked.
Is There a Fee for Filing Petition?
Depending on the county you live in will determine the fee for petitioning for an expungement. Some examples include; San Bernardino County asks for a $270 filing fee, San Diego County will require a $120 filing fee for felony convictions and $60 for misdemeanor convictions, while Los Angeles County will request a maximum $270 fee once the court makes the motion.
Contacting a Record Expungement Attorney Near Me
Leah Legal will provide you with the best record expungement legal advice possible. We represent clients throughout the city of Los Angeles, CA with driving crimes, DUI defense, Domestic Violence, Drug Crimes and more. Leah has a passion for helping those who need their rights and freedom protected. She is a former teacher, community activist, and early Childhood Director and fully understands California law and its court system.
You will be in the best hands possible for all your legal needs when you call Leah Legal at 818-484-1100 and schedule an appointment. Check the rest of our website today and choose the criminal defense attorney who can make a difference in your life and protect your freedom. http://www.leahlegal.com