Clearing Your Record

Overview of Clearing Your Record

If you have a criminal record in California, there are several different ways to clear it.  The most common method of clearing your record is expungement.  Other methods of clearing up your record include petition for factual innocence, withdrawing your plea, vacating your conviction, certificate of rehabilitation and a governor’s pardon.  Each of these methods can only be used under specific circumstances and each method leads to different results.  If you’re thinking about clearing your arrests and/or convictions in California, you need to speak with an experienced and knowledgeable criminal defense attorney that understands all the different options and can choose the one that’s best for you.

California Expungement Attorney

What is an expungement?

If you have been convicted of a crime, you can expunge your conviction through Penal Code sections 1203.4 and 1203.4a.  An expungement allows a defendant to withdraw his guilty plea, enter a not-guilty plea and then have the case immediately dismissed.  A defendant’s criminal record will then show that the case has been dismissed.  Once a defendant expunges his criminal conviction, he is allowed to state that he has not been convicted of a crime with a few exceptions.

What types of convictions can be expunged?

Any felony conviction where probation was granted or any misdemeanor conviction, with a few exceptions, can be expunged.  The exceptions to expungements all relate to certain sex crimes. The following is a list of crimes that can or cannot be expunged.

*  Infractions CANNOT be expunged

*  All misdemeanor convictions can be expunged EXCEPT Penal Code section 288(c)(1)

*  All felony convictions where probation has been granted EXCEPT certain sex offenses

*  Felony convictions where a defendant is sent to state prison CANNOT be expunged

When can a conviction be expunged?

If a defendant is granted probation, then his conviction can be expunged after he successfully completes probation or after he is discharged from probation with the approval of the court.  If a defendant was not granted probation, then his conviction can be expunged one year after his sentence, as long as he completed the terms of his sentence.  Even after probation is terminated, a defendant cannot apply for an expungement if he is currently charged with the commission of another offense, is on probation for another offense or is serving the sentence for another offense.

What relief does an expungement provide?

If an expungement is granted, the defendant is allowed to state that he has not been convicted of that crime.  If the expunged crime was the only crime on a defendant’s record, then a defendant can state he has never been convicted of a crime.  A defendant is allowed to make these statements on any job application.   However, even after an expungement, a person must disclose that they have been convicted of crime when asked in any application for public office or any application for professional license.

What are the chances of getting an expungement?

The chances for a successful expungement depend on whether the defendant has successfully completed all the terms of his sentence. If a defendant completes probation without any problems and leads a crime-free life, then an expungement is guaranteed.  On the other hand, any probation violations or new crimes will reduce the chances of a successful expungement.  Fred Thiagarajah has a 100% success rate with expungements, even ones where the defendant had problems with this case.  Our office has a perfect record because we take the time to review each case and we make sure the paperwork is filed perfectly.  If necessary, we go to court and argue for the expungement in front of the judge.  When Fred Thiagarajah was a prosecutor, he went to court and argued against expungements for certain defendants.  Now Fred Thiagarajah uses that experience to make sure his clients get the relief they require.

 

California Factual Innocence Attorney

What is a factual innocence motion?

Sometimes people are accused of crimes they didn’t commit.  In those instances where a defendant was arrested, but never convicted of a crime, the defendant may file a petition for factual innocence pursuant to Penal Code section 851.8.  These petitions are also commonly referred to as motions to seal arrest records because if the petition is successful, the court orders the Department of Justice to seal your arrest records so that nobody is allowed to know you were arrested in the first place.

When can a person file factual innocence motion?

Penal Code section 851.8 has different procedures for a person who was arrested, but never charged with a crime as opposed to a person who was charged with a crime, but never convicted of the crime.  If a person was arrested, but never charged with a crime, a petition can technically be filed at any time, but strategically, a petition to seal arrest records should only be filed after the statute of limitations has elapsed.  Once the petition is filed, it may take 70 days or more for a hearing to be calendared so that both parties may present evidence before a judge.

If a person was charged with a crime, but never convicted of a crime, then a motion for factual innocence can be obtained anytime after the dismissal or acquittal of the charges.  If the charges were dismissed, the court can grant a motion for factual innocence at any time with the prosecutor’s permission.  Or, if the charges were dismissed, the defendant can file a petition for factual innocence and request a hearing on the matter.  Sometimes, a defendant may choose to file a petition for factual innocence, as opposed to obtaining the prosecutor’s permission, for strategic reasons.  And in cases of acquittal, the court may grant a motion for factual innocence at the acquittal. 

What relief does a motion for factual innocence provide?

If a petition for factual innocence is granted through Penal Code section 851.8, then the person’s arrest records are sealed for three years by the Department of Justice and by every law enforcement agency in the state.  After three years, the records and the petition itself are destroyed.  Once the petition for factual innocence is granted, then a person may state that he has never been arrested for that particular crime.  If that was the only arrest suffered, then a person may claim he has never been arrested at all.  There is a difference between being “not guilty” of a crime and being “innocent” of a crime.  The former implies that the prosecution did not have enough evidence to convict the person, but the latter means that the person really didn’t do the crime.  Once factual innocence has been granted, the person may claim he is truly innocent.

What are the chances of getting a factual innocence petition granted?

Petitions for sealing arrest records and factual innocence are very difficult to win.  As mentioned before, there’s a difference between being “not guilty” and being “innocent”.  There are several cases where the prosecution believes someone has committed a crime, but cannot prove that they have committed the crime beyond a reasonable doubt, which is a very high burden of proof.  Prosecutors rarely dismiss charges because they believe somebody is actually innocent, and when a person files a petition for factual innocence, the District Attorney’s office will almost always oppose the motion.

Furthermore, when the petition for factual innocence comes before a judge, the defendant / petitioner has the burden of proof.  Normally, in a criminal case, the prosecution must bring all the evidence that a defendant is guilty.  A defendant doesn’t have to do anything.  In a petition for factual innocence, it’s the other way around.  The defendant / petitioner must bring forth evidence that they did not commit the crime.  Usually this requires something more than just the defendant’s word.  Actual evidence of innocence must be shown.

Although these motions are difficult to win, Fred Thiagarajah has a 100% success rate.  However, he wins these motions because he doesn’t file them in every case.  Fred Thiagarajah thoroughly reviews a defendant’s case and only if he believes there is a chance of succeeding, will he file a petition for factual innocence.  Our office will NOT take your case if we don’t think we can win.  We don’t want to waste your time and money.

 

California Plea Withdrawal Attorney

What is a plea withdrawal?

California Penal Code section 1018 allows a defendant who pleads guilty to change his mind and withdraw his guilty plea under certain circumstances.  This type of motion is different from an expungement.  If a defendant withdraws his plea under Penal Code section 1018, then the case is not dismissed.  Instead, the clock is turned back and defendant is placed in the situation he was in before he pled guilty – he still has a pending criminal case.  Penal Code section 1018 plea withdrawals are commonly sought in situations where a defendant was pressured to plead guilty against their will or forced to accept a plea bargain that they did not fully understand.

When a can a defendant withdraw his plea under 1018?

If a defendant was granted probation, then he may withdraw his plea within six months of probation being granted.  If a defendant was not granted probation, then he may withdraw or on before the time of judgment (which is the sentencing date in most cases). 

What is the effect of a plea withdrawal under Penal Code section 1018?

If a plea is withdrawn under 1018, then a defendant’s sentence is cancelled and the defendant is taken back to the time right before he pled guilty.  That means, the defendant’s case starts over again from the time right before he pled guilty.  The danger of a successful plea withdrawal is that a defendant could get a harsher sentence than the one they originally got.  There are no promises or guarantees that the case will turn out to be better.

When our criminal defense law office reviews your case with you, Fred Thiagarajah will point out that there’s no point in getting a plea withdrawal unless there’s a plan to get a better deal in the criminal case.  Criminal cases are like chess games – you have to think several steps ahead.  Fred Thiagarajah’s excellence as a criminal defense attorney is apparent in his planning and his attention to detail.

What are the chances for a successful plea withdrawal?

Plea withdrawals under Penal Code section 1018 are difficult.  The courts don’t like to give people second chances and turn the clock back on a case.  The chances for withdrawal first depend on whether there is “good cause”.  A defendant cannot withdraw his plea for any reason.  He must have “good cause” as to why the court should allow his plea to be withdrawn.  “Good cause” includes several different reasons, but you need to speak with an experienced criminal defense attorney who has done these motions to know whether there is “good cause” in a plea withdrawal.

After “good cause” is shown, the second hurdle is whether the defendant was represented by an attorney at the time he pled guilty or whether he pled guilty without the assistance of counsel.  If a defendant did not have an attorney representing him, then the judge must grant a plea withdrawal if “good cause” is shown.  However, if the defendant had an attorney with him, then it is within the court’s discretion whether to grant a plea withdrawal, even if “good cause” is shown. 

Fred Thiagarajah has personally prepared and argued several motions to withdraw pleas.  Although we do not have a 100% success rate, he has won far more than he has lost.  The key to a successful plea withdrawal is preparation.  Fred Thiagarajah will take the time to review your case in detail, thoroughly prepare the written motion and passionately argue the motion in court.  Your best chances of success are with Fred Thiagarajah on your side.

 

Immigration Consequences when Clearing Your Record

It never hurts to have your record cleared, but it doesn’t always help.  Expungements rarely provide immigration relief.  Motions for factual innocence are always helpful, but rarely necessary.  In most criminal cases, the dismissal of the charge is sufficient for immigration courts.  A plea withdrawal under Penal Code section 1018 will be useful if it can be done in time and if it leads to a better result.

Any criminal defendant who is not a citizen needs to consult with an attorney experienced in both criminal and immigration law.  If you are a non-citizen who has already been convicted of a crime and you are looking for immigration relief, it might be better to consult with an immigration attorney first.  If you don’t know a good immigration attorney, call our office.  Fred Thiagarajah works with several immigration attorneys and can recommend one that’s right for you.

The best option, however, is to consult with a criminal defense attorney ahead of time, to avoid being convicted of a crime that has immigration consequences.  Call our office today for a free consultation with an experienced criminal defense attorney who has an in-depth knowledge of immigration consequences in criminal cases.

Currently, the laws regarding immigration consequences are well-known, but the laws are constantly changing.  It is important to hire an attorney that is up to date on immigration consequences for criminal convictions when choosing to hire a criminal attorney.  Fred Thiagarajah constantly attends seminars, consults with immigration attorneys and reviews literature dealing with immigration consequences for criminal defendants. 

Fred Thiagarajah is an immigrant to this country, and son of immigrants.  His parents brought him to the United States when he was three years old and he had the good fortune of being naturalized when his parents naturalized.  Although he has grown up in California, he understands the immigrant culture and knows that most immigrants are good, hard-working individuals who cherish life in this country.  Choose a criminal defense attorney with the intelligence, knowledge and experience necessary to keep you safely in this country.  Choose Fred Thiagarajah.  With offices in Newport Beach, Beverly Hills and Riverside, Fred Thiagarajah has criminal defense experience in the counties of Orange, Los Angeles and Riverside.

Fred Thiagarajah – The Right Lawyer.  The Right Result.  The Right Choice.

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