If you have a criminal record in California, there are several different ways to clear it and there have been recent changes in the law that help people clear their records. The most common method of clearing your record is a dismissal pursuant to Penal Code section 1203.4, commonly known as an “expungement”. Other methods of clearing up your record include:
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.
If you have been convicted of a crime, you can have your conviction dismissed through Penal Code sections 1203.4, 1203.4a and 1203.41. This is commonly known as an “expungement”. 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. In fact, California Labor Code section 432.7 forbids employers from asking employees about crimes that were expunged and prevents employers from discriminating against anyone based on an arrest that did not result in a conviction.
Almost any conviction where a defendant was not sent to state prison can be expunged There are a few exceptions to expungements that relate to certain sex crimes, and there are certain infractions that cannot be expunged either. The following is a list of crimes that can or cannot be expunged.
If a defendant was given probation or sent to prison, then the conviction can be expunged after successfully completion probation or prison. If a defendant was not granted probation or sent to county prison, then the conviction can be expunged one year after the date of sentencing, as long as all the sentencing terms have been completed.
However, a defendant cannot apply for an expungement if currently charged with the commission of another offense, if on probation for another offense or if serving the sentence for another offense.
If an expungement is granted, the defendant can state that they have not been convicted of that crime. If the expunged crime was the only crime on a defendant’s record, then a defendant can state they have 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. Furthermore, an expungement does not affect any revocation or suspension of a person’s driving privilege, pursuant to California Vehicle Code section 13555.
An expungement does NOT erase the firearm prohibition if the underlying conviction prevented a person from possessing, owing or using firearms. Expunged convictions can still be used as priors to enhance sentencing. And finally, the US Citizenship and Immigration Service can still consider expunged convictions in evaluating a person’s immigration status.
The chances for a successful expungement depend on the type of crime being expunged and whether the defendant has successfully completed all the terms of sentence. Probation violations or new crimes will reduce the chances of a successful expungement. Furthermore, certain crimes are harder to expunge than others.
Our attorneys have a 99% success rate with expungements, even ones where the defendant had problems with their case. Our office has an excellent 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. As former prosecutors and public defenders, we have each handled hundreds of expungements successfully.
In California, there are crimes that can be charged as misdemeanors or felonies depending on the extent of the crime. These crimes are called wobblers. For example, grand theft is any theft over $950. If someone committed a theft for $951, the prosecutor may charge the crime as a misdemeanor. However, if someone committed a theft for $951,000, then the prosecutor would charge that crime as a felony. A felony grand theft conviction is a wobbler. Not all felony convictions wobble. Rape is a straight felony. It can never be charged as a misdemeanor.
If a defendant has been convicted of a felony that wobbles, they can petition to have their felony reduced to a misdemeanor under Penal Code section 17b under most circumstances. In the past, 17b relief was not available to defendants who went to state prison or who had suspended state prison sentences. Recent changes in law now allow some defendants who went to state prison to apply for 17b relief; and anyone with a suspended prison sentence can also apply for 17b relief. A defendant can petition for 17b relief at any time – even before probation has been completed. Once a felony is reduced to a misdemeanor under Penal Code section 17b, it is a misdemeanor for all purposes. This is especially important to restore firearm possession rights.
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.
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, the deadline to file a petition is two years from the date of arrest. A petition can technically be filed at any time within two years, but strategically, a petition to seal arrest records should only be filed after at least one year has elapsed, which is the statute of limitations is misdemeanor cases.
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.
There are other options for a person that was arrested but never charged with a crime. Penal Code section 851.6 allows a person to petition the arresting agency to change the record of their arrest to a detention.
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 or the defendant was acquitted of the crime, the court can grant a motion for factual innocence at any time with the prosecutor’s permission. However, even if the prosecutor does not agree to a motion for factual innocence, the defendant can file a petition for factual innocence and request a hearing on the matter.
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.
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, our office has a very high success rate in getting the arrest records sealed. However, our office’s success rate is based on the fact that we don’t file these motions in every case. Our attorneys thoroughly review a defendant’s case and only if we believe there is a chance of succeeding, will we file a petition for factual innocence. Our office will NOT encourage these motions if we don’t think we can win. We don’t want to waste your time and money.
The Consumer Arrest Record Equity Act, also known as the CARE Act, became effective January 1, 2018. The CARE Act allows for arrest records to be sealed under Penal Code section 851.91 in an easier fashion than having arrest records sealed under Penal Code section 851.8 (see above). The CARE Act requires the court to seal arrest records in certain cases and gives the court discretion to seal arrest records in other cases. There is no finding of factual innocence necessary. However, there are limitations to the relief provided by the CARE Act. Arrest records sealed pursuant to Penal Code section 851.91 are not deleted from law enforcement databases, are still available for law enforcement access, can still be used in future criminal prosecutions, must still be disclosed to licensing agencies, applications for law enforcement employment and applications for public office. However, these arrest records, once sealed, cannot be shared with anyone outside the criminal justice system and defendants can otherwise state they have never been arrested. The purpose of the CARE Act is to provide relief to defendants with respect to employment and other non-criminal issues.
People in the following situations are eligible to have their arrest records sealed pursuant to Penal Code section 851.91:
However, the CARE Act does not allow people who have intentionally evaded prosecution to seal their arrest records under Penal Code section 851.91. Also, defendants who have been charged with murder or any other crime that does not have a statute of limitations cannot have their arrest records sealed under Penal Code section 851.91, unless they were acquitted or found factually innocent of the charges.
The earliest that a petition to seal arrest records can be done is after any statute of limitations has expired and there is no chance that charges can be filed, or re-filed. There is no deadline to seal arrest records under 851.91 however, unlike a factual innocence motion which has to be done within two years of the arrest. The petition to seal arrest records under Penal Code 851.91 must be served upon the prosecutor at least 15 days in advance of the hearing.
Penal Code section 851.91 allows a person to state that they have never been arrested and prevents sealed arrest records from being disclosed outside the criminal justice system. However, there are lots of exceptions as to who has access to these records. First, arrest records are marked “sealed’ but they are not deleted from any law enforcement database. All law enforcement and court personnel still have access to these arrest records. The records can be used as part of future criminal prosecutions and must be disclosed in applications for professional licensing and public office, and employment with law enforcement. Also, sealing arrest records under the CARE Act does not allow a prohibited person from having access to firearms. The primary purpose the CARE Act is to help people clear their “consumer” record, not their “criminal” record.
The good news is that these petitions are lot easier to win than petitions for factual innocence under 851.8. In most cases, the court has to grant these petitions as long as the petitioner can demonstrate they meet all the various requirements of 851.91. There are some cases – petitioners accused of domestic violence, child endangerment or elder abuse who also have a history of those crimes – where the court can exercise discretion. Even in those cases, however, a petitioner can get their arrest records sealed if they can show that this relief is in the “interests of justice”. In either scenario, it’s important to have a knowledgeable attorney preparing the petition and arguing it before the court.
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.
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).
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, our attorneys 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. Our excellence as a criminal defense attorneys is apparent in our planning and our attention to detail.
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.
Each of our attorneys has personally prepared and argued several motions to withdraw pleas. The key to our high success rate is preparation. Our attorneys 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 the right attorneys on your side.
In California, sex offender registration is always for life. Previously, relief from sex registration required a Certificate of Rehabilitaiton (see below), but as of July 1, 2021, a Certificate of Rehabilitation does not provide sex offender relief. Now, Penal Code section 290.5 is the only law that allows defendants to apply for relief from sex offender registration. There are three tiers of sex offender registration.
Tier 1 involves misdemeanor sex crimes, such as misdemeanor sexual battery (PC 243.4), indecent exposure (PC 314), misdemeanor annoying / molesting a child (PC 647.6(a)) and misdemeanor possession of child pornography (PC 311.11). Tier 1 also involves most felony sex crimes that are not strikes. Tier 1 offenders can apply for registration removal after 10 years.
Tier 2 offenders involves felony sex crimes that are strikes and certain other felonies including incest (PC 285), a second violation of annoying / molesting a child (PC 647.6(c)) and crimes against incapacited victims that involve sodomy (PC 286), oral copulation (PC 287) or penetration by foreign object (PC 289). Tier 2 offenders can apply for registration removal after 20 years.
Tier 3 offenders involve repeat offenders where the second conviction for a registerable crime was a violent felony. Tier 3 offenders are required to register for life.
A certificate of rehabilitation is a court order that declares a defendant has been deemed “rehabilitated” and it serves as an application to obtain a pardon from the Governor’s office. This is the only avenue of relief available to individuals who were sent to state prison. If granted, a Certificate of Rehabilitation constitutes an application for a Governor’s Pardon. If a person lives in California, they must first obtain a certificate of rehabilitation before applying for a pardon. Individuals who live outside of California or who are ineligible for a certificate of rehabilitation must use a direct pardon application. As of July 1, 2021, a Certificate of Rehabilitation no longer eliminates registration as a sex offender. The only way to be removed from sex offender registration is through Penal Code section 290.5.
Penal Code section 4852.01(a) allows any defendant sent to prison (either state prison or 1170(h)) to apply for a certificate of rehabilitation. Penal Code section 4852.01(b) also allows any defendant convicted of felony or misdemeanor sex offense that has had their conviction dismissed pursuant to PC 1203.4 to apply IF they have not served any time in jail since the dismissal of their conviction, are not on felony probation, and can prove five years of continuous residence in California prior to their application.
Penal Code section 4852.01(c) and (d) specify that certificates of rehabilitation are not available to defendants serving death sentences or life parole, or in military service. A certificate of rehabilitation is also not available to defendants convicted of Penal Code sections 269, 286(c), 287(c), 288, 288.5, 288.7, 289(j) or the former 288a(c), unless there are “extraordinary circumstances.”
Pursuant to Penal Code section 4852.03, a defendant must wait for a certain period of time before applying for a certificate of rehabilitation. The time period begins from the date a defendant was released from custody or parole or probation, whichever is sooner. The time period depends on the crime:
However, pursuant to Penal Code section 4852.22, a court may grant a certificate of rehabilitation before the required time period, in any case where it is in the “interests of justice” but this rule does not apply to 290 registration cases.
A sex offender who seeks a certificate of rehabilitation cannot have spent any time in jail or prison since the underlying sex offense; must currently not be on felony probation at the time of the application for a certificate of rehabilitation and must show proof of residency within California for at least 5 years preceding the application.
Expungements are helpful but rarely provide immigration relief. Motions for factual innocence are always helpful, but are not always available, especially in cases that are over two years old. When old criminal convictions hurt a person’s immigration status, then a motion to vacate conviction may be the only viable option for a defendant to get immigration relief.
A motion to vacate conviction allows a defendant to have his underlying conviction ruled invalid and once the conviction is ruled invalid, it no longer can be used against them in immigration courts. In the past, the courts had severely limited the time in which these motions could be filed. However, Penal Code section 1473.7, which became effective January 1, 2017, now allows a defendant to attack any previous conviction by showing that either (a) the defendant was not properly advised of his immigration consequences at the time of the plea or (b) there is new evidence proving the defendant’s innocence. This statute expands the power to vacate convictions that was allowed by Penal Code section 1016.5. 1016.5 only allowed the court to vacate a conviction if the judge did not give the proper immigration advisement on the record. However, 1473.7 allows a conviction to be vacated if the defendant received improper information from anyone, including his or her own attorney.
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. Our attorneys constantly attend seminars, consult with immigration attorneys and review literature dealing with immigration consequences for criminal defendants. The best option, of course, is to retain the right criminal lawyer ahead of time, to avoid being convicted of a crime that has immigration consequences. Whether it’s a pending case or a past one, our attorneys have the knowledge and experience to help you achieve the best immigration results.
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 clear your record quickly and effectively. All of our attorneys are either former prosecutors, Super Lawyers™ or both. With offices in Newport Beach, and throughout Southern California, our attorneys have criminal defense experience in the counties of Orange, Los Angeles, San Bernardino and Riverside.