Can a Felony be Expunged in California?
Full Question:
My daughter had a felony (theft) in California 7 years ago. Can she have it expunged as Bill Handle as the law purportedly said? She currently resides in Tucson.
06/29/2009 |
Category: Criminal ยป Expungement ... |
State: Arizona |
#17236
Answer:
Under California law, felony convictions can be expunged through dismissal of the charges as long as the defendant did not serve a state prison sentence and successfully completed the terms of probation. Other requirements may apply depending on whether or not probation was received (see links below). Exceptions to this rule include most traffic and sex-related crimes.
Please see the following CA statutes to determine applicability:
1203.4.
(a) In any case in which a defendant has fulfilled the
conditions of probation for the entire period of probation, or has
been discharged prior to the termination of the period of probation,
or in any other case in which a court, in its discretion and the
interests of justice, determines that a defendant should be granted
the relief available under this section, the defendant shall, at any
time after the termination of the period of probation, if he or she
is not then serving a sentence for any offense, on probation for any
offense, or charged with the commission of any offense, be permitted
by the court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has been
convicted after a plea of not guilty, the court shall set aside the
verdict of guilty; and, in either case, the court shall thereupon
dismiss the accusations or information against the defendant and
except as noted below, he or she shall thereafter be released from
all penalties and disabilities resulting from the offense of which he
or she has been convicted, except as provided in Section 13555 of
the Vehicle Code. The probationer shall be informed, in his or her
probation papers, of this right and privilege and his or her right,
if any, to petition for a certificate of rehabilitation and pardon.
The probationer may make the application and change of plea in person
or by attorney, or by the probation officer authorized in writing.
However, in any subsequent prosecution of the defendant for any other
offense, the prior conviction may be pleaded and proved and shall
have the same effect as if probation had not been granted or the
accusation or information dismissed. The order shall state, and the
probationer shall be informed, that the order does not relieve him or
her of the obligation to disclose the conviction in response to any
direct question contained in any questionnaire or application for
public office, for licensure by any state or local agency, or for
contracting with the California State Lottery.
Dismissal of an accusation or information pursuant to this section
does not permit a person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under
Section 12021.
Dismissal of an accusation or information underlying a conviction
pursuant to this section does not permit a person prohibited from
holding public office as a result of that conviction to hold public
office.
This subdivision shall apply to all applications for relief under
this section which are filed on or after November 23, 1970.
(b) Subdivision (a) of this section does not apply to any
misdemeanor that is within the provisions of subdivision (b) of
Section 42001 of the Vehicle Code, to any violation of subdivision
(c) of Section 286, Section 288, subdivision (c) of Section 288a,
Section 288.5, or subdivision (j) of Section 289, any felony
conviction pursuant to subdivision (d) of Section 261.5, or to any
infraction.
(c)
(1) Except as provided in paragraph (2), subdivision (a) does
not apply to a person who receives a notice to appear or is otherwise
charged with a violation of an offense described in subdivisions (a)
to (e), inclusive, of Section 12810 of the Vehicle Code.
(2) If a defendant who was convicted of a violation listed in
paragraph (1) petitions the court, the court in its discretion and in
the interests of justice, may order the relief provided pursuant to
subdivision (a) to that defendant.
(d) A person who petitions for a change of plea or setting aside
of a verdict under this section may be required to reimburse the
court for the actual costs of services rendered, whether or not the
petition is granted and the records are sealed or expunged, at a rate
to be determined by the court not to exceed one hundred twenty
dollars ($120), and to reimburse the county for the actual costs of
services rendered, whether or not the petition is granted and the
records are sealed or expunged, at a rate to be determined by the
county board of supervisors not to exceed one hundred twenty dollars
($120), and to reimburse any city for the actual costs of services
rendered, whether or not the petition is granted and the records are
sealed or expunged, at a rate to be determined by the city council
not to exceed one hundred twenty dollars ($120). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the costs for services established
pursuant to this subdivision.
(e) Relief shall not be granted under this section unless the
prosecuting attorney has been given 15 days' notice of the petition
for relief. The probation officer shall notify the prosecuting
attorney when a petition is filed, pursuant to this section.
It shall be presumed that the prosecuting attorney has received
notice if proof of service is filed with the court.
(f) If, after receiving notice pursuant to subdivision (e), the
prosecuting attorney fails to appear and object to a petition for
dismissal, the prosecuting attorney may not move to set aside or
otherwise appeal the grant of that petition.
(g) Notwithstanding the above provisions or any other provision of
law, the Governor shall have the right to pardon a person convicted
of a violation of subdivision (c) of Section 286, Section 288,
subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of
Section 289, if there are extraordinary circumstances.
1203.4a.
(a) Every defendant convicted of a misdemeanor and not
granted probation shall, at any time after the lapse of one year from
the date of pronouncement of judgment, if he or she has fully
complied with and performed the sentence of the court, is not then
serving a sentence for any offense and is not under charge of
commission of any crime and has, since the pronouncement of judgment,
lived an honest and upright life and has conformed to and obeyed the
laws of the land, be permitted by the court to withdraw his or her
plea of guilty or nolo contendere and enter a plea of not guilty; or
if he or she has been convicted after a plea of not guilty, the court
shall set aside the verdict of guilty; and in either case the court
shall thereupon dismiss the accusatory pleading against the
defendant, who shall thereafter be released from all penalties and
disabilities resulting from the offense of which he or she has been
convicted, except as provided in Section 12021.1 of this code or
Section 13555 of the Vehicle Code. The defendant shall be informed of
the provisions of this section, either orally or in writing, at the
time he or she is sentenced. The defendant may make an application
and change of plea in person or by attorney, or by the probation
officer authorized in writing; provided, that in any subsequent
prosecution of the defendant for any other offense, the prior
conviction may be pleaded and proved and shall have the same effect
as if relief had not been granted pursuant to this section.
This subdivision applies to convictions which occurred before as
well as those occurring after, the effective date of this section.
(b) Subdivision (a) does not apply to any misdemeanor falling
within the provisions of subdivision (b) of Section 42001 of the
Vehicle Code, or to any infraction.
(c) A person who petitions for a dismissal of a charge under this
section may be required to reimburse the county and the court for the
cost of services rendered at a rate to be determined by the county
board of supervisors for the county and by the court for the court,
not to exceed sixty dollars ($60), and to reimburse any city for the
cost of services rendered at a rate to be determined by the city
council not to exceed sixty dollars ($60). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the cost for services established
pursuant to this subdivision.
(d) Any determination of amount made by a court under this section
shall be valid only if either
(1) made under procedures adopted by
the Judicial Council or
(2) approved by the Judicial Council.
1203.45.
(a) In a case in which a person was under the age of 18
years at the time of commission of a misdemeanor and is eligible for,
or has previously received, the relief provided by Section 1203.4 or
1203.4a, that person, in a proceeding under Section 1203.4 or
1203.4a, or a separate proceeding, may petition the court for an
order sealing the record of conviction and other official records in
the case, including records of arrests resulting in the criminal
proceeding and records relating to other offenses charged in the
accusatory pleading, whether defendant was acquitted or charges were
dismissed. If the court finds that the person was under the age of 18
at the time of the commission of the misdemeanor, and is eligible
for relief under Section 1203.4 or 1203.4a or has previously received
that relief, it may issue its order granting the relief prayed for.
Thereafter the conviction, arrest, or other proceeding shall be
deemed not to have occurred, and the petitioner may answer
accordingly any question relating to their occurrence.
(b) This section applies to convictions that occurred before, as
well as those that occur after, the effective date of this section.
(c) This section shall not apply to offenses for which
registration is required under Section 290, to violations of Division
10 (commencing with Section 11000) of the Health and Safety Code, or
to misdemeanor violations of the Vehicle Code relating to operation
of a vehicle or of a local ordinance relating to operation, standing,
stopping, or parking of a motor vehicle.
(d) This section does not apply to a person convicted of more than
one offense, whether the second or additional convictions occurred
in the same action in which the conviction as to which relief is
sought occurred or in another action, except in the following cases:
(1) One of the offenses includes the other or others.
(2) The other conviction or convictions were for the following:
(A) Misdemeanor violations of Chapters 1 (commencing with Section
21000) to 9 (commencing with Section 22500), inclusive, Chapter 12
(commencing with Section 23100), or Chapter 13 (commencing with
Section 23250) of Division 11 of the Vehicle Code, other than Section
23103, 23104, 23105, 23152, 23153, or 23220.
(B) Violation of a local ordinance relating to the operation,
stopping, standing, or parking of a motor vehicle.
(3) The other conviction or convictions consisted of any
combination of paragraphs (1) and (2).
(e) This section shall apply in a case in which a person was under
the age of 21 at the time of the commission of an offense as to
which this section is made applicable if that offense was committed
prior to March 7, 1973.
(f) In an action or proceeding based upon defamation, a court,
upon a showing of good cause, may order the records sealed under this
section to be opened and admitted into evidence. The records shall
be confidential and shall be available for inspection only by the
court, jury, parties, counsel for the parties, and any other person
who is authorized by the court to inspect them. Upon the judgment in
the action or proceeding becoming final, the court shall order the
records sealed.
(g) A person who petitions for an order sealing a record under
this section may be required to reimburse the court for the actual
cost of services rendered, whether or not the petition is granted and
the records are sealed or expunged, at a rate to be determined by
the court not to exceed one hundred twenty dollars ($120), and to
reimburse the county for the actual cost of services rendered,
whether or not the petition is granted and the records are sealed or
expunged, at a rate to be determined by the county board of
supervisors not to exceed one hundred twenty dollars ($120), and to
reimburse any city for the actual cost of services rendered, whether
or not the petition is granted and the records are sealed or
expunged, at a rate to be determined by the city council not to
exceed one hundred twenty dollars ($120). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in a case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the cost for services established
pursuant to this subdivision.
The following is a CA statute governinig sealing of juvenile records:
781.
(a) In any case in which a petition has been filed with a
juvenile court to commence proceedings to adjudge a person a ward of
the court, in any case in which a person is cited to appear before a
probation officer or is taken before a probation officer pursuant to
Section 626, or in any case in which a minor is taken before any
officer of a law enforcement agency, the person or the county
probation officer may, five years or more after the jurisdiction of
the juvenile court has terminated as to the person, or, in a case in
which no petition is filed, five years or more after the person was
cited to appear before a probation officer or was taken before a
probation officer pursuant to Section 626 or was taken before any
officer of a law enforcement agency, or, in any case, at any time
after the person has reached the age of 18 years, petition the court
for sealing of the records, including records of arrest, relating to
the person's case, in the custody of the juvenile court and probation
officer and any other agencies, including law enforcement agencies,
and public officials as the petitioner alleges, in his or her
petition, to have custody of the records. The court shall notify the
district attorney of the county and the county probation officer, if
he or she is not the petitioner, and the district attorney or
probation officer or any of their deputies or any other person having
relevant evidence may testify at the hearing on the petition. If,
after hearing, the court finds that since the termination of
jurisdiction or action pursuant to Section 626, as the case may be,
he or she has not been convicted of a felony or of any misdemeanor
involving moral turpitude and that rehabilitation has been attained
to the satisfaction of the court, it shall order all records, papers,
and exhibits in the person's case in the custody of the juvenile
court sealed, including the juvenile court record, minute book
entries, and entries on dockets, and any other records relating to
the case in the custody of the other agencies and officials as are
named in the order. In any case in which a ward of the juvenile
court is subject to the registration requirements set forth in
Section 290 of the Penal Code, a court, in ordering the sealing of
the juvenile records of the person, also shall provide in the order
that the person is relieved from the registration requirement and for
the destruction of all registration information in the custody of
the Department of Justice and other agencies and officials.
Notwithstanding any other provision of law, the court shall not order
the person's records sealed in any case in which the person has been
found by the juvenile court to have committed an offense listed in
subdivision (b) of Section 707 when he or she had attained 14 years
of age or older. Once the court has ordered the person's records
sealed, the proceedings in the case shall be deemed never to have
occurred, and the person may properly reply accordingly to any
inquiry about the events, the records of which are ordered sealed.
The court shall send a copy of the order to each agency and official
named therein, directing the agency to seal its records and stating
the date thereafter to destroy the sealed records. Each such agency
and official shall seal the records in its custody as directed by the
order, shall advise the court of its compliance, and thereupon shall
seal the copy of the court's order for sealing of records that it,
he, or she received. The person who is the subject of records sealed
pursuant to this section may petition the superior court to permit
inspection of the records by persons named in the petition, and the
superior court may so order. Otherwise, except as provided in
subdivision (b), the records shall not be open to inspection.
(b) In any action or proceeding based upon defamation, a court,
upon a showing of good cause, may order any records sealed under this
section to be opened and admitted into evidence. The records shall
be confidential and shall be available for inspection only by the
court, jury, parties, counsel for the parties, and any other person
who is authorized by the court to inspect them. Upon the judgment in
the action or proceeding becoming final, the court shall order the
records sealed.
(c)
(1) Subdivision (a) does not apply to Department of Motor
Vehicle records of any convictions for offenses under the Vehicle
Code or any local ordinance relating to the operation, stopping and
standing, or parking of a vehicle where the record of any such
conviction would be a public record under Section 1808 of the Vehicle
Code. However, if a court orders a case record containing any such
conviction to be sealed under this section, and if the Department of
Motor Vehicles maintains a public record of such a conviction, the
court shall notify the Department of Motor Vehicles of the sealing
and the department shall advise the court of its receipt of the
notice.
Notwithstanding any other provision of law, subsequent to the
notification, the Department of Motor Vehicles shall allow access to
its record of convictions only to the subject of the record and to
insurers which have been granted requestor code numbers by the
department. Any insurer to which such a record of conviction is
disclosed, when such a conviction record has otherwise been sealed
under this section, shall be given notice of the sealing when the
record is disclosed to the insurer. The insurer may use the
information contained in the record for purposes of determining
eligibility for insurance and insurance rates for the subject of the
record, and the information shall not be used for any other purpose
nor shall it be disclosed by an insurer to any person or party not
having access to the record.
(2) This subdivision shall not be construed as preventing the
sealing of any record which is maintained by any agency or party
other than the Department of Motor Vehicles.
(3) This subdivision shall not be construed as affecting the
procedures or authority of the Department of Motor Vehicles for
purging department records.
(d) Unless for good cause the court determines that the juvenile
court record shall be retained, the court shall order the destruction
of a person's juvenile court records that are sealed pursuant to
this section as follows: five years after the record was ordered
sealed, if the person who is the subject of the record was alleged or
adjudged to be a person described by Section 601; or when the person
who is the subject of the record reaches the age of 38 if the person
was alleged or adjudged to be a person described by Section 602,
except that if the subject of the record was found to be a person
described in Section 602 because of the commission of an offense
listed in subdivision (b), of Section 707, when he or she was 14
years of age or older, the record shall not be destroyed. Any other
agency in possession of sealed records may destroy its records five
years after the record was ordered sealed.
(e) This section shall not permit the sealing of a person's
juvenile court records for an offense where the person is convicted
of that offense in a criminal court pursuant to the provisions of
Section 707.1. This subdivision is declaratory of existing law.