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Expungement (PC1203.4/1203.4a)

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Office of the Public Defender

The first thing that someone who wants to apply for an expungement needs to understand is that if your petition is granted under Penal Code 1203.4 (or 1203.4a), your case is not sealed or deleted.  A criminal record is not actually "expunged" under this statute.  That term implies complete erasure, as if the case had never occurred.  California does not have a procedure to seal criminal records.  A more proper term is "dismissed".  The conviction remains on your record for many purposes, including sex offender registration and immigration consequences.  What the statute provides is, except as elsewhere stated, the defendant is 'released from all penalties and disabilities resulting from the offense'.  

There are numerous limitations to this relief.  The two major criteria that would make you ineligible for expungement are prison and conviction on particular charges.  If you are convicted of a felony and you serve ANY time in prison for that crime, you are ineligible for expungement.  If you were convicted of Vehicle Code 42002.1; or Penal Code sections 286(c), 288, 288a (c), 288.5, 289(j), 311.1, 311.2, 311.3, 311.11, or a felony charge of 261.5(d), you are not eligible for expungement of those charges.  [PC 1203.4(b)] You may be eligible for other relief.

An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute. If you are granted an early termination of your probation for good behavior, you are also eligible for an expungement/dismissal.  The applicant must not be on probation, or serving a sentence (including informal probation) for any other offense, anywhere. (Penal Code § 1203.4)

If you were denied probation, you can still obtain an expungement.  You cannot be currently on probation or serving a sentence for any other case.  Applicants that were denied probation must wait for one year after their conviction before applying for expungement (Penal Code§1203.4a)

If your criminal case was reduced to an infraction, you are also eligible for an expungement under Penal Code section 1203.4a.  Our office does not file infraction petitions.  You are able to file the petition yourself.

What are the effects of expungement under PC1203.4/1203.4a?

It Will:

1. Result in a new entry in the court record showing the dismissal of the case;

2. Allow you to answer on many, but not all, job applications that you have not been convicted.
    If, however, you are applying for a government job, or a job which requires a government-issued
    license, certificate, or permit, or a job which involves a security clearance, the conviction will be
    discovered; in such cases, you should disclose the initial conviction and its later expungement;

3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being
    tried for a subsequent offense.

4. If the conviction was for a felony, expungement is the first step in obtaining a pardon.
 

It Will Not:

1. Remove the conviction from your "Rap Sheet" - California and FBI criminal history records will
    still show the conviction and the later dismissal "per PC 1203.4"; 

2. Reinstate the right to possess firearms,if it was taken away (in cases such as Domestic Violence)
     (reduction to a misdemeanor may accomplish this if the offense is not one of violence;)

3. Remove the requirement to register as a sex offender per PC290.  If the expungement is granted,
    registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when
    eligible.  A Certificate of Rehabilitation will relieve specified sex offenders from further registration. 
    This is true for both felony and misdemeanor convictions.

4. Allow you to omit the conviction from applications for government issued licenses;

5. Seal or otherwise remove the court case file from public inspection - anyone who knows where
     to look will be able to find the court case file (probation reports are in confidential files and are
     not subject to public inspection 90 days after sentencing;)

6. Prevent the conviction from being used as a "prior" or "strike prior" to increase punishment on a 
    subsequent conviction;

7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;

8. Prevent the conviction from being considered and used to refuse or revoke government licenses
    and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security
    guard certificates, etc.; however, the expungement may reduce the weight given the conviction
    by the licensing agency.

9. Prevent the conviction from being used by INS for removal and exclusion purposes.

How is expungement accomplished?
The applicant must complete a 'Petition for Relief' form and submit it to the Superior Court, where 
the conviction occurred, for review and a decision by the court.  The Court charges a fee for filing 
such a petition.  The fee is currently $120 for a felony case and $60 for a misdemeanor or infraction 
case, but the Court may waive the fee in the event the petitioner establishes an inability to pay.

The Superior Court’s website contains helpful information about the expungement process for
both misdemeanors and felonies.  If you feel that you are unable to pay the court fees, you can file
a 'Request to Waive Court Fees", along with the petition.  Some courts require a "Financial Declaration" 
instead.  The Court will make a decision on waiving the fees on the case.  You can file these forms 
yourself by filling out the forms online, printing them out, and mailing/taking them to the court address 
on the form.  The court normally takes at least 8-10 weeks to make a decision on a case.

Misdemeanors and infractions do not require any other information other than what is on the the
form,unless you violated probation or committed new crimes afterwards.  If you were convicted of Driving 
Under the Influence (DUI), Reckless Driving, Driving on a Suspended License, or a number of other 
charges that also add 2 points to your driving record, you will also need to file additional paperwork.

Felonies always require additional paperwork.  A motion must be written and filed with your felony petition.  
A court hearing will be scheduled and you will need to appear.  You will need to go to your local law library 
to inquire about how to properly write the motion for the court.  If you have more than one case you wish
to expunge, you should contact our office for assistance.

Expungement through the Office of the Public Defender
The Office of the Public Defender can assist you with the expungement process, if you wish.  
You will need to fill out the application form, then save it to your hard drive or
print it out.  The exact format is not important – just the answers to the questions.

There are several ways to submit the information"

        1.  Save the completed form to your hard drive, open up your mail server, and then attach the form
                to the e-mail message.  You should contact our office first, to find out who to send the e-mail to.  
                Click on the 'Contact us' link to the left.  If you know which court you appeared in, put it in the 
                message. The e-mail will be forwarded to the proper person and you will be contacted.  If you 
                have other convictions outside San Diego County, be sure to mention it.  If the case was in 
                Federal Court, you cannot get an expungement.

      2.  Copy the questions to the Windows clipboard and then paste the information into an e-mail message. 
                The questions could then be answered in the e-mail message itself and then the 
                message can be sent to our office.  Again, contact our office as mentioned above.

      3.  Print out a blank form.  Fill out the information by hand and fax the form to our office.  Contact
                the proper office to find out their fax number, if you went through a branch courthouse.  If you are
                unsure which office it should be sent to, fax it to the Main Office number below.

The court charges a $60 fee for each misdemeanor and infraction expungement and $120 for each felony
expungement.  These fees will be paid to the court.  It is possible to request a fee waiver for these fees,
if you qualify.  DO NOT send any money to our offices.  You will send it to the courthouse after the
process is complete.          

Older Misdemeanor Cases

Misdemeanor cases that are older than 5 years may be purged (destroyed) by the court at any time, depending on the charges.  In some cases, it can be less than that.  If your original court file has been purged, it is more difficult to obtain an expungement.  You may need to contact the Department of Justice (DOJ) in Sacramento to obtain a copy of criminal history report ("CII" - Criminal Identification and Information").  The DOJ will give you materials to fill out and will only release the report to you upon proper identification (i.e. fingerprints).  Contact our office to confirm your case has been purged before following this procedure.  The DOJ charges you to receive the report.  Getting LiveScan fingerprints or a fingerprint card done can also incur a fee.  You can get information on the procedure by contacting the DOJ in a number of ways.  

By Mail:    California Department of Justice
                    RECORD REVIEW UNIT
                    PO Box 903417
                    Sacramento CA 94203-4170

By Phone:   (916) 227-3838

On-line:        http://ag.ca.gov 

Once you receive that report, you can forward a copy to our office to assist with the expungement.
Keep the original for your records.

Submit your completed application form and other materials to:
 

Department of the Primary Public Defender

Attn: Expungement Paralegal

450 "B" Street, Suite 900

San Diego, CA 92101


FAX:   619-338-4811 (Attn: Expungements)