As most attorneys will advise, expungement is not available if one is put on probation, but then probation is revoked and terminated, often with the client being remanded into jail or state prison to complete the remainder of one’s sentence.
That is generally true, however, Penal Code § 1203.4(a) does permit the judge to nonetheless grant a petition for dismissal (expungement) in the interests of justice if it finds defendant has lived “an honest and upright life” after release from jail or prison.
This provision is rarely invoked and in the history of Greg Hill & Associates, involving over 200 expungements over the last 22 years, our office had never sought expungement under section 1203.4(a).
The following case summary represents our first such attempt – and luckily, it was successful.
In 2003, our client was nineteen years old. She picked up three cases for shoplifting, often from Macy’s, and one for DUI, all within perhaps a two-year period. In her third shoplifting case, the matter was prosecuted as a felony under the then-operative Penal Code § 666.
In her second shoplifting case, out of the Downtown Los Angeles “Bauchet Street” courthouse, across the street from Twin Towers, she was prosecuted for attempted shoplifting (Penal Code §§ 664-484(a). She was already on probation for a first shoplifting case out of the Santa Clarita / Valencia / Newhall courthouse, in which she was placed on summary or informal probation.
In this second case, about nine months later, she had been caught attempting to shoplift at the Macy’s downtown, off Seventh Street, in the heart of downtown Los Angeles. The value of the items she had in her possession after walking past the store’s checkout lines, was approximately $400. She was stopped just as she left the store, which technically was a completed crime, not just an attempt.
Nonetheless, she was able to resolve the charges for three years of informal, or summary probation, with an obligation to serve ten days in Los Angeles County jail. About three months after resolving her second case, she was caught for shoplifting at the Sherman Oaks Galleria Macy’s and the matter was brought in the Van Nuys Superior Court as a felony.
The judge in the downtown Los Angeles case revoked and terminated our client’s probation in response to the new shoplifting charge and remanded her to county jail for sixty days to complete her sentence. She was not reinstated on probation and allowed to serve out the remainder of her probation. She then served 30 days of the sixty days, but stayed in jail to serve out the remainder of a 150-day jail term for her felony shoplifting case (felony shoplifting is no longer a crime after the passage of Proposition 47).
When the client called Greg Hill & Associates in 2021 to ask about expungement of her DUI and her three shoplifting cases, she was not clear what her sentences had been on each, as the events overlapped and took place over fifteen years ago. So Greg went to the Torrance Courthouse, where he was able to get the dockets for all four cases, as they were all within Los Angeles County.
After serving her time in custody for the second and third shoplifting cases, she explained that she had relocated to Istanbul, Turkey and became a pre-school teacher. However, she wanted to return to the United States and specialize in early childhood education and possibly teach kindergarten. She was married now.
Greg looked over the dockets for all four cases and told her he could certainly petition for dismissal (expungement) in all four cases, but that the judge had discretion to deny the petition in the downtown Los Angeles case because her probation had been revoked and terminated early, with the remainder of her sentence being served in custody. However, the judge had discretion to grant this under Penal Code § 1203.4(a), but Greg explained, he had never requested this and he had never seen a judge grant expungement under this provision in 22 years.
The client trusted Greg and retained Greg Hill & Associates to file petitions for dismissal in all four cases, as well as have the felony shoplifting reduced to a misdemeanor under Penal Code § 17(b)(3). In the DUI, the first shoplifting case and the third shoplifting case, the judge granted the petitions.
However, on the second shoplifting case (attempted shoplifting), the prosecution filed an opposition to the petition, explaining that our client was ineligible since she had her probation terminated and she was not reinstated on probation. She had not successfully completed probation, like the statute requires.
Greg, however, argued that the judge could grant the petition in the interests of justice if she found our client had led an honest and upright life since leaving jail. In this case, the prosecution showed our client had no criminal history since 2005, so the judge granted the petition in the interest of justice. Our client was pleased.