Under California law, offenses fall under three main categories. Felonies, misdemeanor, and infractions. A felony is an offense punishable with imprisonment in the state prison, death, or any other punishment imposed by the law. A felony offense could also be punishable by imprisonment in county jail, but this will depend on the facts of the case. Given that a felony conviction is a severe offense, many people often wonder whether it is possible to expunge a felony offense. Yes, it is possible to erase the sentence since a criminal attorney can negotiate to have the felony reduced to a misdemeanor.
A Common Misconception
A common misconception is that felony offenses cannot be expunged. If you have the proper legal representation, many felony offenses are reducible to misdemeanors. If the conviction resulted in probation and not actual imprisonment, it is possible to erase the case. However, it is essential to note that certain sexual offenses do not qualify for expungement.
The process of expunging a felony conviction could take between 10 and 16 weeks. The specific duration will vary depending on how old the conviction is, the court handling the case, and the case's complexity. If a felony case is complex, the expungement process could take longer than the typical 6 to 10 weeks. A felony conviction will not be expunged by the mere passage of time. You have to file a petition for expungement to the court with the help of a criminal defense attorney.
Many Felony Offenses Are Wobblers
Many cases in California are not automatic felonies but wobblers. A case is a wobbler if the prosecutor has the discretion to charge the case as a felony or misdemeanor. An attorney can negotiate to have the case reduced to a misdemeanor and expunged from your record. Most theft cases in California are wobblers. If a case is an automatic felony, like most drug crimes, your attorney cannot negotiate to have the case charged as a misdemeanor. If you served time in state prison, it is not possible to expunge your felony conviction.
Before You Begin The Expungement Process
Before filing for expungement or dismissal of your felony case, it is crucial to understand what an expungement is, the benefits of expungement, and its limitations. As outlined by California law, an expungement is a legal procedure that diminishes or removes certain offenses. California PC 1203.4 outlines that if a defendant convicted of a felony or misdemeanor meets the prison sentencing and probation conditions, they may be eligible for expungement of their criminal records. When your felony conviction is expunged, your case is reopened, and your guilty verdict or guilty plea is set aside, and your criminal case is dismissed. According to PC 1203.4, an expungement will release you from all penalties and disabilities of the felony conviction.
What An Expungement Will Do For You
After an expungement of a felony conviction, you will no longer have to disclose the conviction when applying for a job. This could be extremely helpful in helping you secure meaningful employment because employers will not discriminate against you based on your criminal record. It is unlawful under California for any employer to discriminate against an employee based on expunged criminal convictions. After an expungement, the law requires employers to treat defendants as though they have not had any criminal conviction. An expungement could also help you gain professional licensure or join a professional organization. Through an expungement of your felony conviction, you can avoid deportation or other immigration consequences that could result from the felony conviction.
The Limitations Of Expungement Of Felony Convictions
There are several limitations of the expungement of your felony conviction. First, having your conviction expunged does not mean that the conviction will be entirely hidden from public view. According to California PC 29800, a felony with a firearm expungement will not restore your right to possess or own a gun. Finally, even after expungement, your felony conviction might still affect your driving privileges.
If the felony conviction had affected the defendant's right to hold public office, the expungement of the conviction can’t restore this right. It is also important to note that if a felony conviction required you to register as a sex offender, expungement of the conviction wouldn’t relieve you from having to register as a sex offender. If you had registered as a sex offender, your registration remains available to the public even after the expungement of your felony crime.
The expungement of a conviction will not prevent the conviction from being used against you in future sentencing for any additional offenses you commit. An expunged felony conviction could still count as a strike under the California Three Strikes Laws. With the help of an attorney, you can resolve some of the limitations of an expungement through other legal means like the Governor's Pardon and certificate of rehabilitation. You can be able to restore your firearm rights by having your felony conviction reduced to a misdemeanor.
How An Attorney Will Assist In The Expungement Of A Felony Conviction
Not everyone who has been convicted of a felony offense is eligible for an expungement. In addition, specific details of your case could affect the circumstances of your filing for an expungement. Therefore, it is essential to ensure that you are familiar with the facts of your case to help you determine whether you are eligible to have your criminal record expunged. An attorney will play the following roles during the expungement of your conviction.
Request For Copies Of Your Criminal Records
Your criminal records will include all the relevant information contained in the papers you received during your conviction. Additional documents can be obtained from the attorney who handled the initial case, your probation or parole officer, or the superior court where the conviction took place. Copies of your criminal records are also available at the California State Department of Justice Criminal Record Review Unit or Office of the Attorney General's website.
You may have to pay a fee for the retrieval of your criminal records. The Department of Justice Criminal Record Review Unit charges a cost of $25. However, if you provide proof of income, you may be exempted from paying the retrieval fee. It could take several weeks for you to receive your criminal records.
Finding Out If You Are Eligible For Expungement
An attorney will also find out if you are eligible for the expungement of your criminal record. You are likely to qualify for an expungement if the following factors apply:
- You have a conviction for a felony or misdemeanor
- You aren’t facing any criminal charges at the time of applying for expungement
- You aren’t currently serving a sentence for a criminal offense
- You did not serve imprisonment in a California state prison
- You obtained an early termination of your probation or completed your probation
- You do not have any unpaid or outstanding court fines
- You successfully served and completed your sentencing and all its requirements. Requirements for sentencing may include community service alongside other programs
- You faced charges and conviction in a state court and not federal court
- It has been at least one year since your conviction if you did not receive probation
- You have a prior conviction for a felony offense, you served jail time in county jail, and it has been at least two years since completion of the sentencing
- You did not fulfill all the probation conditions, but you are not currently facing charges for another offense
- You were formerly a member of the U.S military, and you suffered trauma, injury, or other mental health problems as a result of your service in the military.
A felony must first be reduced to a misdemeanor for it to be expunged from your criminal record. A felony offense that qualifies for expungement is that which could have otherwise been a misdemeanor. These types of crimes are known as wobblers.
When You Are Not Eligible For Expungement
You may not be eligible for expungement of your felony conviction if any of the following factors apply:
- You faced conviction in a federal court
- You served time in a state prison in California
- You are currently facing charges for another criminal offense or serving probation or sentence for another criminal offense.
- You committed a sex crime that involves children.
- You are still serving probation, and you have not succeeded in having your probation terminated early.
An attorney will consider all the facts of your felony conviction to determine your eligibility for an expungement.
Gather All Details Of Your Conviction
An attorney will also gather all the necessary details of your conviction. For example, if you have multiple convictions, an attorney will find out the following:
- The case number
- If a verdict occurred
- If the defendant entered a plea and whether the plea was no contest or guilty
- The details of the defendant’s sentencing
An attorney will determine if the defendant was to serve some time in prison, the date of release and whether they were released on parole.
Determining The Status Of Probation
When determining whether you qualify for an expungement of your criminal conviction, an attorney will also determine your probation status. If the defendant is still serving probation, they must have the probation terminated before applying for an expungement. The defendant must file a petition in court to have the probation terminated. The termination of probation will depend on the court's discretion. When determining whether to terminate a defendant's probation, the court will hold a hearing and determine:
- The conviction and its degree of seriousness
- The defendant’s criminal record
- The defendant’s ability to get a job after probation termination
- Whether the defendant deserves to have their probation terminated, which mainly depend on how they behaved while on probation
- The defendant’s community ties and the people they support or the volunteer work they have done.
If the defendant violates the probation terms, they may still apply for expungement and attend a hearing to have the judge determine whether to terminate their probation.
The Process Of Expunging A Felony Conviction
Which steps do you need to take when seeking expungement of your felony conviction? Below are the steps that you should follow:
Hire An Attorney
If you hire an experienced attorney to represent you through the expungement process, you will succeed. You should hire an experienced attorney who has a thorough understanding of all aspects of California law. An attorney will help you complete all the requirements of your expungement application.
Obtaining And Completing The Relevant Forms
Your attorney will help you determine which forms you will need to complete the expungement process. If you intend to apply for expungement but have not yet completed your probation, you should first file a motion to terminate probation.
If the court denies your motion to terminate probation, you should file a petition for dismissal. You can obtain the petition for Dismissal form from your courthouse. If the form is not available, your attorney can help write your own.
If you seek to expunge a felony, the felony must first be reduced to a misdemeanor offense. If the crime is a wobbler, it can be reduced to a misdemeanor by petitioning the court. For other felonies, the defendant must fill the relevant forms to have the felony reduced to a misdemeanor. These forms are available at the courthouse, and if not, the defendant can draft their own with the help of an attorney. After the felony has been reduced to a misdemeanor, the defendant files a petition to dismiss a misdemeanor under PC 1203.4.
If you are applying for an expungement of several convictions, you must fill the relevant forms for every sentence. In addition, you may have to attach certain documents to the forms when submitting them to court. The documents include a written proof of your completion of community service and your character reference to help strengthen your petition for expungement of your felony conviction.
Filing For Expungement
You may file for expungement after you have completed all the necessary paperwork for your case. It will take between several weeks to several months to complete the expungement. The court hears cases in the order in which they were filed. You should submit the expungement forms in the court in the county where you were convicted.
The petitions to terminate probation and petitions to reduce a felony to a misdemeanor should be delivered or mailed to the clerk of the court. Depending on your county, you may submit a petition to the probation officer or district attorney. The process of filing a petition will vary from county to county and will also depend on the seriousness of your case. A felony petition fee will be higher than filing a petition to dismiss a misdemeanor petition. When you pay all the relevant fees, the court will set a date when your forms and petitions will be filed.
Meeting With An Attorney To Prepare For The Hearing
The other step involves meeting with your attorney to prepare for the hearing. You may or may not have to appear in court for the expungement hearing. During the expungement hearing, your attorney will raise your reasons for seeking an expungement. You should ensure that you are prepared to handle all questions that might arise. Your attorney will help you gather all the relevant evidence to your case and help you prepare a statement to present in court.
The Expungement Hearing
Expungement hearings are usually held before a judge, and there is no jury present. An expungement hearing proceeding will take around 10 minutes. Therefore, you should ensure that you are on time for the hearing and behave appropriately. The court will consider several factors when determining your eligibility for expungement at the hearing:
- The charges applicable
- Your parole status
- Whether you have additional convictions
- Whether you are capable of finding and holding a job
- Your community involvement and community service
When The Judge Accepts Your Petition
If the judge accepts your petition for expungement, you will receive a signed order from California’s superior court judge. It is important to note that the record may still be accessible by the public unless you have your criminal record sealed even after the expungement. After the expungement of your felony conviction, you will no longer have to answer yes when people ask you whether you have a criminal record. However, you have to disclose the criminal conviction even after expungement in the following instances:
- When applying for a state license
- When running for a public office
- If you intend to work in the California lottery commission
When The Court Denies Your Petition
If the judge denies your petition to expunge a felony conviction, you have a night to ask why the judge denied your petition. Then, you can re-file the petition six months after the petition is dismissed.
Alternatives To Expungement
You should not give up after finding out that you are not eligible for an expungement of your felony conviction. There are some additional methods of clearing your record that you can consider. The methods include:
- Having your records destroyed or sealed
- Obtaining a certificate of rehabilitation
- Receiving a direct pardon from the governor
If you seal your criminal conviction, all the arrest records, police records, and documents about your case will be destroyed. If you were wrongly arrested and not convicted of a crime, you could have your documents sealed. A certificate of rehabilitation is available seven years after your release from probation. A direct pardon from the governor relieves the defendant of all penalties associated with a conviction.
Find A Criminal Defense Attorney Near Me
If you are in Van Nuys, CA, have a felony conviction on your record, we invite you to contact Leah Legal. Our experienced attorneys will evaluate your case and determine if you qualify for expungement. Contact us at 818-484-1100 and speak to one of our attorneys.