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Who Qualifies For An Expungement?

California has several expungement statutes depending on the circumstances of the petitioner’s conviction. Each statute requires the petitioner to have complied with the terms of probation or the terms of sentence. Anyone who has paid all court ordered fees, fines, and victim restitution imposed as a condition of probation, and any other court ordered requirement of their sentence, and meets the following criteria is eligible to expunge their conviction.

Example #1: In 2020, Johnny was convicted of a misdemeanor and was sentenced to probation for one year. Johnny’s probation successfully expired in 2021. Johnny is not currently serving a sentence, on probation for any offense, or charged with the commission of any offense. Johnny is eligible for relief.

Example #2: In 2020, Johnny was convicted of a misdemeanor and was sentenced to probation for one year. Johnny’s probation successfully expired in 2021. Johnny was then convicted of another misdemeanor and given another year of probation. Johnny is not eligible for relief because he is currently on probation for a separate offense.

Example #1: In 2020, Johnny was convicted of a misdemeanor and was sentenced to probation for one year. Johnny’s probation required him to pay a $100 fine. Johnny’s probation expired in 2021. Johnny did not pay the $100. Johnny is not eligible for relief because he did not comply with the terms of his sentence.

Example #2: In 2020, Johnny was convicted of a misdemeanor and was sentenced to probation for one year. Johnny’s probation expired in 2021. Johnny is technically eligible to petition for relief since it has been more than one year since the pronouncement of judgment. However, Johnny would have a higher chance of success if he waited one year until after he was released.

So Can Felonies Be Expunged?

Usually, if you were convicted of a felony and sentenced to prison you are not able to expunge your felony conviction (But if the felony is reduced pursuant to Proposition 47, then you can expunge the conviction even if you went to prison). If you were convicted of a felony and sentenced to probation, you may petition the court to have your felony conviction expunged. But what about those petitioners who served their felony sentence in county jail or state prison?

The California Legislature has provided two avenues of relief through the enactment of Penal Code sections 1203.41 and 1203.42 that allow those who were convicted of a felony and went to prison or served time in county jail to have their felony expunged. Before discussing the avenues of relief, it is important to understand the basis of the relief.

In 2011, then-Governor Jerry Brown signed into law Assembly Bill 109 (“AB 109”) known as the California Realignment Act. AB 109 allows those convicted of lower-level felonies to serve their time in county jail as opposed to state prison. Now, courts may sentence an offender and give them either a “straight sentence” or a “split sentence.” A “straight sentence” is when an offender is sentenced by the court to serve their entire sentence in custody. After serving their time and being released, their sentence is complete and they are not required to serve any term of supervision. On the other hand, a “split sentence” is when a court sentences an offender to spend a portion of their time in custody (i.e. county jai) and the rest of their time under community supervision (i.e. mandatory supervision).

Example #1: In 2015, Johnny was convicted of a felony. The court gave Johnny a “split sentence” of 24 months: 12 months in the county jail and 12 months of mandatory supervision. Johnny served 12 months in jail and was released in 2016. Johnny spent the next 12 months under mandatory supervision. Johnny completed his sentence in 2017. Johnny must wait 1 year until 2018 to apply for relief because he was given a period of mandatory supervision. 

Example #2: In 2015, Johnny was convicted of a felony. The court gave Johnny a “straight sentence” of 24 months in the county Jail.  Johnny served 24 months in jail and was released in 2017. Because Johnny was not given a mandatory period of supervision, he must wait 2 years until 2019 to apply for relief. 

Example #1: In 2010, Johnny was convicted of identity theft and sentenced to prison. Due to the Realignment Act, a felony conviction for identity theft today can be served in the county jail. Since Johnny’s felony prison sentence would have been eligible for a felony county jail sentence had the Realignment Act been in effect at the time his conviction, Johnny would be eligible for relief. 

Example #2: In 2010, Johnny was convicted of identity theft and sentenced to prison. Johnny got out in 2018. Due to the Realignment Act, a felony conviction for identity theft today can be served in the county jail. Soon after his release from prison, Johnny was charged with a misdemeanor. Although two years have elapse since Johnny completed his felony prison sentence, he is not eligible for relief as he is charged with the commission of a new offense. 

Of Right or Discretionary

Expungements can be

(1) of right; or

(2) discretionary

When an expungement is “of right,” the court does not have discretion and must grant the petitioner relief. As the name suggests, a “discretionary” expungement is left to the court’s discretion, and will be granted if “the interests of justice” warrant the petitioner’s relief. Whether your petition is “of right” or “discretionary” depends on the circumstances of your case.

Example: The court sentenced Johnny to 12 months probation. The court also ordered Johnny to attend classes once a month. Johnny successfully fulfilled the conditions of his probation for the entire 12 months: he violated no new laws and attended every class. Johnny’s relief is “of right.”

Example: The court sentenced Johnny to 12 months probation. Johnny was discharged for good behavior 6 months in. Johnny’s relief is “of right.”

Example #1: The court sentenced Johnny to 12 months probation. Johnny violated probation three separate times. The court subsequently terminated Johnny’s probation as unsuccessful, and sentenced him to 60 days in jail. Johnny’s relief has fall out of the “of right” category and into the “discretionary” category.

Example #2: The court denied Johnny probation, and gave him a fine and sentenced him to serve 5 days in the county jail. Johnny’s relief is not “of right” and is “discretionary.”

Hit and run (Veh. Code, §§ 20001, 20002.)

Driving under the influence (Veh. Code, § 23152.)

Driving under the influence causing injury (Veh. Code, § 23153.)

Reckless driving (Veh. Code, §§ 23103, 23103.5.)

Vehicular manslaughter (Pen. Code, § 192, subd. (c).)

Vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (b).)

Evading police (Pen. Code, § 2800.2.)

Evading police and causing injury/death (Pen. Code, § 2800.3)

Driving on the wrong side of the road (Veh. Code, § 21651, subd (b).)

Driving over 100 MPH (Veh. Code, § 22348.)

Speed racing (Veh. Code, § 23109, subd. (a).)

Underage driving under the influence (Veh. Code, § 23140.)

Driving on a suspended or revoked license (Veh. Code, §§ 14601 et al.)

Any violation of probation.

How Do I Get Started?

Let Go Legal has made the expungement process easy for anyone seeking to expunge their record. We start with a preliminary case evaluation to determine whether you qualify for relief. If we determine during our initial assessment that you qualify for relief, we will then obtain all requisite documents on your behalf to confirm that you are eligible for expungement relief. There is nothing you need to do except reach out.

After obtaining your documents, we then start on your petition. If your petition is “of right,” we have the petition filed with the court, and serve the district attorney and probation department on your behalf. Because “of right” petitions are usually decided in the judge’s chambers, there is nothing more that needs to be done until we hear a decision from the judge.

If your expungement is “discretionary,” we will help draft a declaration explaining why relief should be granted in the interest of justice along with documentation to support your claim. If the court sets any hearing, we will appear on your behalf to demonstrate to the court that the relief should be granted. You are not required to attend the hearing, but we strongly encourage you to do so.

The Hearing

Depending on whether the expungement is “of right” or “discretionary” will determine what happens next. If the expungement is for a misdemeanor “of right” or “discretionary,” there is usually no hearing on the petition unless the district attorney finds some issue to bring to the court’s attention, or the court has an issue to address to the parties. Generally, a misdemeanor “of right” and “discretionary” expungements is sent straight to the judge and is granted in their chambers without the presence of either party.

There is a different procedure for felonies. Some counties require a pleaded motion for a felony expungement. This means that a date must be set for the hearing. After a felony expungement is filed and served, the probation department will draft a pre-sentence report to furnish to the court. The report gives the court the probation department’s opinion on whether relief should be granted. Sometimes these reports go both ways. For example, the petition is not exactly doomed because the probation department opines that relief should not be granted. On the other hand, the petition is not exactly guaranteed to be granted because the probation department opines that relief should be granted. Remember, the discretion is left to the court. This is why it is important to have competent counsel represent you at an expungement hearing. A zealous advocate on your side can help prove to the court that the interests of justice would be served in granting you relief.

Allow Let Go Legal help you let go of your past and move forward in life.  We handle all matters on your behalf starting with our initial consultation. There is no cost to determine whether you are eligible for relief. We will gather the requisite documents on your behalf, draft and file your petition, and appear on your behalf in court to obtain the relief you need. Our flat fee prices include everything. There are no hidden costs.  Don’t wait any longer. Start the process today and see if you qualify for relief.

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