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Criminal Defense Attorneys

Expungement if One Went to Prison; What’s § 1203.42?

Effective January 1, 2018, Assembly Bill 1115 extended what some might say are the logically implied rights of AB 109 and Proposition 47 into expungement through Penal Code § 1203.42.

As the reader may be aware, Assembly Bill 109 “realigned” our prison system to lower the population within California’s 33 prisons due to overcrowding that even the United States Supreme Court recognized as implicating cruel and unusual punishment banned under the Eighth Amendment. 

In response, the California Legislature passed and then-governor Jerry Brown signed the “California Public Safety Realignment Act of 2011,” also called Assembly Bill 109 (AB 109), that shifted certain state prisoners from state prison to county jails.  Such prisoners were those convicted of lower-level felonies, meaning non-violent, non-serious, non-sexual offenses.  No longer would they be sent off to state prison.  Instead, they would be housed in county jails to serve their sentences.  After completion of their county jail term, they would be supervised by county probation officers, not parole officers.

Following the passage of AB 109, Proposition 47 (called the “Safe Neighborhoods and Schools Act”) was passed into law by the California electorate on November 4, 2014.  The law redesignated certain low-level drug and theft felonies as misdemeanors, which effectively meant that fewer people would be ordered to state prison for such convictions and instead would be placed on probation.

The consequences was that certain offenders were then eligible to have convictions expunged for what were once state prison sentence offenses disqualified for expungement.

The natural question then became whether a person convicted of a low-level felony prior to AB 109 in 2011 could somehow have such a conviction expunged even though that person was sentenced to an in fact served time in state prison.

Assembly Bill 1115 addresses this, providing that a person who did serve a state prison sentence for an offense that otherwise would have been served in county jail after AB 109 is eligible to have that offense expunged if certain other requirements are met.

Those are that:
  1. Two years must pass after the person completed his or her state prison sentence and parole thereafter;
  2. The person may not be facing any open case, in custody, on parole, on post-relief community supervision or probation on any other case;
  3. If given relief under 1203.42, the person must still disclose the conviction on any application for public office, for licensure by any state or local agency, or for contracting with the State Lottery Commission; and
  4. If relief is given under 1203.42, the person remains barred from owning, purchasing, possessing or having under his or her custody or control any firearm or ammunition.
The court may charge a fee up to $150 for processing an application under 1203.42.  If someone files such an application using judicial council Form FL-180, the prosecutor must be given at least fifteen days’ notice before a hearing on such a petition.  In other words, one cannot just file it and walk up to a courtroom for a hearing.

It is important to know that expungement under 1203.42 does not prevent deportation based on the underlying conviction.  In other words, the conviction still “counts” to an immigration court.

We have filed several petitions now for relief under 1203.42 for low-level drug offenses, i.e., Health and Safety Code § 11350(a), and multiple time shoplifting as a felony Penal Code § 666, wherein prior to 2011, our clients were actually sentenced to and served state prison sentences.

We think this new law is overlooked by many criminal defense attorneys and that there are many people “scarred” by prior prison sentences for what were then felonies, but are now misdemeanors, who still suffer the collateral consequences of being a “convicted felon,” when in fact such a conviction can be expunged and the person would otherwise enjoy the significant benefits of expungement, but is unaware of this new law. 

When we recognize this situation and the person’s eligibility, that person is often ecstatic, as they have already experienced the stigma of being a convicted felon for many years, if not decades.

For more information about expungement, please click on the following articles:
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