Many people and even prosecutors are unaware that under California Penal Code § 1203.4a(a) a person convicted of an infraction can request that the judge order the plea set aside and the case dismissed (expungement). The statute does not apply to most Vehicle Code violations, but it does apply to infractions suffered under the Penal Code.
In a Nutshell: Client, age 26, had a conviction for Disturbing the Peace (Penal Code § 415(2)) as an infraction negotiated from a misdemeanor charge for Public Nuisance (Penal Code § 372) after he was ticketed for urinating in public in Hermosa Beach. Conviction for the infraction is expunged in Torrance Superior Court.
The standard for granting expungement is actually harder than under section 1203.4, which applies to expungement of certain qualifying misdemeanors and felonies. Under section 1203.4, the statute states that the judge “shall” set aside the plea. It is mandatory if the petitioner did not have a state prison sentence imposed, is not in custody, on probation or parole and is not facing any pending charges.
In contrast, the judge considering a request to expunge a conviction for an infraction must consider if the petitioner has “lived an honest and upright life” since the date of the judgement. This is similar to the standard for a certificate of rehabilitation, but for a far less serious offense. However, it includes the requirements that the petitioner not be on probation or parole for any other offense, not be in custody and not be facing any pending charge. Caselaw interpreting what “an honest and upright life” has suggested that the person also avoid any convictions during the period of living an “honest and upright life.”
In the case of our client convicted of violating Penal Code § 415(2) as an infraction (negotiated after he was cited for urinating in public (public nuisance under Penal Code § 372) in the downtown Hermosa Beach area), he had certainly lived an honest and upright life since the conviction.
He paid the $50 court fine and fees (totaling $310) imposed with the conviction and then served for over three years as a second officer, as part of the U.S. Merchant Marine, aboard the USNS Red Cloud military ship located off Ukibaru Island near Japan in the Pacific Ocean. He had served his country, not as part of the military, but as part of the Merchant Marine, performing difficult work far away from the United States.
Now 26 years old, he was returning to California from his service and interested in becoming a school teacher with the Los Angeles Unified School District. He wanted to teach history or English.
He knew that his conviction, even for an infraction, would make him less competitive in being hired, even as an interim substitute teacher. It merits mention for the reader here that under new legislation passed in Sacramento, a state licensing board cannot consider an expunged conviction when considering an application for a state license, such as a teaching credential. There are certainly exceptions to this new law, but in general, expungement can help one in the licensing process for many professional licenses issued from the State of California.
Earlier, Greg had contacted the client upon the one-year anniversary of his conviction, which is the earliest point at which one can seek expungement of a conviction for an infraction, but the client did not respond to Greg’s e-mail.
However, two plus years later, the client contacted Greg and asked about expungement of the conviction. Greg remembered the client quite well due to the client’s naval service (Greg went to and graduated from the Naval Academy in Annapolis), so the passage of more than three years since last speaking to the client felt like three days.
Greg prepared the petition for dismissal with a declaration from the client attesting to his living an honest and upright life since the conviction and describing his naval service, his career goals as an educator and his lack of any police contact since the conviction.
The Redondo Beach City Prosecutor’s office, which handles most misdemeanor matters in Hermosa Beach, did not oppose the petition.
The Torrance Superior Court judge assigned to the case granted the petition, which made the client quite happy.
For more information about early termination of probation and expungment issues, please click on the following articles:
- Expungement of an Infraction?
- Is Expungement Worth It?
- What Does the New Law in 2015 Concerning Expunged Convictions Mean for State License Applications?