What’s Ineligible for Expungement? What Doesn’t Change?
It comes as a shock to some people that their conviction for certain felony child molestation charges, other sex offenses, a few vehicle code violations and many infractions are not eligible for expungement or that even if it is eligible, expungement does not:
- end the obligation to register for life as a sex offender or remove the person from the Megan’s Law Internet website (however, that person can still apply for a certificate of rehabilitation or a pardon);
- restore the right to own / buy / possess a firearm or ammunition;
- prevent the conviction from being pleaded and proved as a prior conviction for a sentencing enhancement later;
- end a driver’s license suspension or revocation;
- preclude the use of the conviction to impeach someone who is testifying; or
- allow that person to hold public office.
That is because in other states, expungement confers rights that an expungement in California does not.
This article is intended to clarify the rights surrounding relief under California Penal Code § 1203.4(a)(1) and 1203.41 (for someone who completes a county jail felony sentence).
A person who has successfully completed probation (or had probation terminated early) and is currently not facing any pending charges, in custody or on probation for any other offense may petition a court under Penal Code § 1203.4(a)(1) to set aside a guilty verdict or withdraw a guilty (or no contest) plea and dismiss the complaint or information. If eligible under these circumstances and the conviction was not for any of the offenses specified under 1203.4(h), relief must be granted. People v. Arata (2007) 151 Cal.App.4th 778.
The convictions under 1203.4(h) that are excluded from 1203.4 relief are those for Penal Code §§ 261.5(d) (statutory rape when defendant is over 21 and the victim is under 16), 288 (lewd acts with a child), 288a(c) (oral copulation with a child) and 286(c) (sodomy with a child), Vehicle Code § 42001 or to any Vehicle Code infraction. Other infractions may be expunged under Penal Code § 1203.4a. An attempted violation of §§ 261.5(d), 288, 288a(c) or 286(c) is eligible for expungement. People v. Marinelli (2014) 225 Cal.App.4th 1, 5.
Section 1203.4 also provides that a judge can “in the furtherance of justice” grant this relief “in any other case.” People v. McLernon (2009) 174 Cal.App.4th 569, 577 (denial of prior 1203.4 request will not bar subsequent 1203.4 petition brought in the interest of justice).
However, someone who was denied probation and given a prison term cannot apply for relief under Penal Code § 1203.4. See, e.g. People v. Borja (1980) 110 Cal.App.3d 378, 381. Section 1203.4 relief is available, however, on a joint suspended sentence where defendant is granted probation and the state prison sentence is never imposed. People v. Parker (2013) 217 Cal.App.4th 498, 501.
Due to the new Penal Code § 1203.42 (codified in 2018), as well as some the arrival of Prop 64 and Prop 47, however, there are exceptions now to the general rule that if one served a prison sentence, he or she is barred from 1203.4 relief. For example, if one did serve time in prison, but that person served it for a crime that is now punishable by a county jail sentence, that person is generally eligible for expungement (see Article 909 on this website for further information).
When a defendant has been convicted of multiple counts, some of which qualify for 1203.4 dismissal and some of which do not, defendant can seek 1203.4 relief on those counts that do qualify. People v. Mgebrov (2008) 166 Cal.App.4th 579, 591.
The defendant’s court record is not expunged or sealed if 1203.4 relief is granted. It remains a fully public document, much to many of clients and potential clients’ dismay.
A common issue is when someone is granted probation, but the individual does not pay all restitution owed. This is often thought of as a bar to 1203.4 relief, but it is not a per se bar. The judge can consider defendant’s post-conviction behavior and if there are changed circumstances, such as losing a job or having a financial disaster that prevents payment of restitution. People v. McLernon (2009) 174 Cal.App.4th 569, 572.
For more information about expungement issues, please click on the following articles: