With some exceptions, an expungement of a person’s prior criminal conviction means his or her criminal conviction is virtually erased from the public’s view.
In California, an expunged criminal conviction appears as a ‘dismissed’ criminal accusation to the public. Upon successful petition for expungement, the criminal court will "set aside" the defendant’s conviction, allow the defendant to withdraw his guilty plea, or ‘no contest plea,’ and enter a ‘not guilty’ plea on behalf of the defendant. Thereafter, the court will dismiss the defendant’s criminal allegation, and with some exceptions, the defendant will be released from all penalties of the conviction (PC 1203.4(a) Abbrev.).
An expungement of a criminal conviction, especially a conviction for certain sex offenses, is great for defendants seeking to clean criminal history, gain better employment opportunities, gain better housing opportunity, and restore their reputation.
Note: An expungement is also an underlying requirement for persons seeking to petition the court for a certificate of rehabilitation.
Most felony and misdemeanor convictions are expungable in California; however, there are exceptions. Per California penal code section 1203.4(b), an expungement is not available for person’s convicted certain sex crimes, including the crimes of sodomy, charged as PC 286(c), lewd and lascivious act upon a child under 14, charged as PC 288(a), oral copulation, charged as PC 287(c), continuous sexual abuse of a child, charged as PC 288.5, sexual penetration, charged as PC 289(j), possession of child pornography, charged as either PC 311.1, 311.2, 311.3, or 311.11, and felony statutory rape charged as PC 261.5(d).
Expungement Requirements: Per PC 1203.4(a), to qualify for an expungement, the defendant must have successfully completed probation, must not have been ordered to a California state prison (some exceptions under PC 1203.4(b)), must not be facing new criminal allegations, must not be serving a sentence at the time of his or her petition, and must not have been convicted of certain enumerated sex crimes (See above).
Note: Misdemeanor offenses that are not available for expungement under PC 1203.4(a), might otherwise be available for expungement under PC 1203.4a, including misdemeanor violations of possession of child pornography, charged under PC 311.1, 311.2, 311.3, or 311.11.
Expungement Limitations: If the defendant is successful with his petition for expungement, he or she will still be required to report the conviction to some parties and agencies, including truthful responses regarding the prior conviction in response to any questionnaire or application for public office, or licensure by any state or local agency… (PC 1203.4(a)(1) Abbrev.).
Also, a successful petition for expungement does not restore a defendant’s firearm rights (PC 1203.4(a)(2); vitiate an unexpired criminal protective order (PC 1203.4(a)(4)); or terminate the duty to register as a sex offender. Other limitations may apply.
Note: The main difference between PC 1203.4(a) and PC 1203.4a, is that PC 1203.4(a) applies to both felony and misdemeanor crimes and the defendant must have been granted probation to be eligible for expungement, and PC 1203.4a allows expungement of most misdemeanor, including most sex crimes misdemeanors, even when the defendant was sentenced to jail.
PC 1203.41 Expungement of Sex Crimes
Some sex crimes, which are not expungable under PC 1203.4(a) or PC 1203.4a above, might otherwise be expungable under California penal code section 1203.41.
PC 1203.41 covers crimes that were previously not expungable because the defendant was sent to prison, which generally makes expungements unavailable. However, after the passage of new California prison resentencing laws in 2011, the court is allowed to grant expungement to defendants who were sentenced to prison, but who would have been sentenced to jail, if the defendant was sentenced under the new resentencing laws (PC 1170(h) (If PC 1170(h) existed at the time of sentencing the defendant). This makes many more felony crimes eligible for expungement that were previously barred because of the ‘no prison sentence’ requirement under PC 1203.4(a) and PC 1203.4a.
For purposes of sex crimes, penal code section 1203.41 adds a few sex offenses to the list of expungement-eligible sex crimes, including felony statutory rape (PC 261.5(d)), which is specifically not expungable under either PC 1203.4(a) or PC 1203.4a., and prostituting of wife (PC 266g).
Regardless of what code section the petitioner uses for expungement, there are limitations as how that expunged criminal record may be used to certain parties and agencies (i.e., must be truthful about the conviction to licensing agencies, work with the lottery commission, expungement does not overturn an unexpired criminal protective order, epungement does not terminate a duty to register as a sex offender, etc.).
Note: Expungement for sex crimes under PC 1203.41 is ‘discretionary’ with the court.
Certificate of Rehabilitation: A certificate of rehabilitation is a statement from the court that the defendant is rehabilitated from his crime. A successful expungement is a prerequisite for a petitioner to petition the court for a certificate of rehabilitation (PC 4852); however, as stated, certain sex crimes convictions are not eligible for an expungement under PC 1203.4(a), 1203.4a, or PC 1203.41; therefore, the certificate of rehabilitation is also not available for these enumerated sex crimes (See list above).
Petition to Terminate Sex Offender Registration & Expungement: A person seeking to terminate sex offender registration under California's new Tier System for sex offender registrants, is not required to first secure an expungement. Therefore, certain sex crimes, which are otherwise not expungable, may nevertheless qualify for termination of sex offender registration (PC 290.5). In other words, the sex crimes conviction remains on the defendant’s criminal history, but the duty to register as a sex offender pursuant to that conviction, might be terminated.
For more information on the law of expungement as it applies to California sex crimes convictions, or to get started on expunging a sex crimes conviction, contact our successful team of sex crimes criminal defense attorneys today. Our office is open seven days a week to answer your questions and we successful helped hundreds of defendants charged every type of misdemeanor or felony sex crime. Call today!