Expungement Not Available When Probation Terminated?
To qualify for expungement in California, a conviction must be for certain offenses, generally described as any offense which involved a sentence of less than one year in county jail. If the individual was granted probation, the defendant must fulfill the conditions of probation. In addition, the applicant must not be serving any sentence for any offense, on probation or charged with the commission of any offense.The Point of This Article: If one fails to successfully complete probation, i.e. because one violates probation and is then sentenced to jail with probation to terminate upon completion of the jail term, that person is ineligible for expungement, as the case summary here exemplifies.
Finally, the judge determined that Johnson was unfit for probation and ordered him in August 2003 to serve a straight sentence of 120 days in jail. Upon completion of his time in jail, probation was terminated.
In 2011, Mr. Johnson made a motion under Penal Code § 1203.4 to set aside his guilty plea and dismiss the complaint (expungement) of his misdemeanor domestic violence charge. The grounds were that probation was terminated early. The trial court denied the motion.
Johnson appealed the decision to the Appellate Division of the Superior Court. The Appellate affirmed the trial court.
Johnson then appealed the case to the Fourth Appellate District. The Fourth Appellate District, in People v. Kevin Deunder Johnson (2012 DJDAR 15756), noted that the Appellate Division held that relief under Penal Code § 1203.4 is triggered by successful completion of probation or early discharge from probation as a reward for good behavior and rehabilitation.
The Fourth Appellate District then pointed out decisional law requires a defendant making an application for expungement to affirmatively establish that he or she has fulfilled all probationary conditions. People v. Ignazio (1955) 137 Cal. App. 2d Supp. 881, 882-883. All conditions of probation must be performed. Chandler, supra, at 789.
Here, Johnson did not fulfill all probationary conditions. He was kicked out his 52-week batter’s program for missing four consecutive classes and he repeatedly failed to enroll in the classes by the deadline set by the court. Therefore, the Appellate District Court affirmed the denial of relief for Johnson under Penal Code § 1203.4.
In reviewing this opinion, we are reminded of countless other cases we have handled wherein the client fails to pay the full amount of restitution. This is a far more common form of violating the terms of probation and also prevents application of Penal Code § 1203.4. However, we have had cases wherein the client was placed on three or even five years of probation, but did end up paying the restitution seven or even ten years later. While this would technically present a violation of probation, we have found that seeking expungement of the conviction is often successful because the judge is happy to reward the client for making the entire restitution payment to the victim, even if late.
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