Exupungements and Reductions: P.C. 1203.4, P.C. 17(b), and P.C. 17(d)
Do you want to clean your record, but aren't sure how to begin? The attorneys at The Law Office of Sarah Sager are very knowledgeable in this area of law. Call us today at 310-713-3281 and we can take care of all the paperwork and headache. If you are curious about the process, I wanted to outline some basics about how the process works and how we will assess your case. An expungement is when the court allows you to withdraw your plea and enter a dismissal on the record under California Penal Code 1203.4. This will allow you to truthfully state that you have never been convicted of a crime. However, you will still have to disclose the previous conviction to state licensing agencies among other exceptions.
First, I would evaluate if you are eligible for an expungement or if you need to get a Certificate of Rehabilitation or Pardon instead. I would need to get your docket from the courthouse in the county where you were convicted. It will speed up the process if you already have obtained your docket from the courthouse. You will be disqualified from an expungement if you served time in prison, are currently on probation for any offense, have charges pending against you, were not given probation but 1 year has not passed since the conviction, or were convicted of certain sex crimes. It is important to note that even if your sex crime is eligible for an expungement, relief under C.P.C. 1203.4 will not relieve your duty to register under P.C. 290.
If you have a felony charge, I will then check to see if it is eligible for a reduction under C.P.C 17(b). A felony is eligible for a reduction if it is a "wobbler." This means the code must specify that the particular crime you were convicted of is punishable by either county jail or state prison. A reduction under C.P.C. 17(b) will restore your gun rights. On the other hand, if you were convicted of a misdemeanor your crime might be eligible for reduction to a misdemeanor under C.P.C. 17(d). In order to be eligible, the crime must be a predicate crime listed under C.P.C. 19.8.
After I know you are eligible for an expungement, I want to see what code section to bring the motion under. If you were given probation and fulfilled the conditions, or had probation terminated early then you are eligible under C.P.C. 1203.4. If probation was revoked at any time, you are still eligible, but the expungement must be granted in the interest of justice. There are also certain crimes that must be brought in the interest of justice. These include the following: V.C. 20001 or 20002, 23152 or 23153, reckless driving, P.C 191.5(b), PC 192 (c) V.C. 2800.2 or V.C. 2800.3, V.C. 21651(b), V.C. 22348(b), V.C. 23109(a) or 23109(c), V.C. 23109.1, or V.C 31602, V.C. 23140(a), 23140(b) V.C. 14601, V.C. 14601.1, V.C. 14601.2, V.C. 14601.3, or V.C. 14601.5. If the expungement is brought in the interest of justice then you must attach a MC-031 declaration.
If no probation was given, then it must have been 1 year since the date of conviction. I would then bring the expungement motion under C.P.C. 1203.4a. If you had convictions after the conviction you want expunged, then you will also need to attach a MC-031 declaration.
If you were convicted of Prostitution under C.P.C. 647(b), but there is clear and convincing evidence that you are a victim of child trafficking I would bring the expungement under C.P.C. 1203.49. This will mean that the DOJ cannot disseminate information that you were once convicted of this section.
If you served a prison sentence that was converted to local time in custody under C.P.C. 1170(h)(5) then I will want to bring your expungement under C.P.C. 1203.41. These are usually non-serious, non-violent, non-sex felony offenses.
If you were given DEJ under P.C. 1000 and your case was already dismissed, you can still obtain an expungement under C.P.C. 1203.43. This will allow the case to be "dismissed" again, usually for immigration purposes. Currently, California forms do not allow for a simple form motion under this section. Instead, you must bring your motion from scratch. California is currently working on changing it's policies and you can expect new forms in 2017 that include C.P.C. 1203.43.
FOR MOST LA COUNTY CASES they are requiring us to fill out CRIM 196 and CRIM 243 forms to show that the filing fee of $120 will be paid. The filing fee in other counties may be as high as $150. After the motion is written under the correct code section, then I will make 3 copies. I will serve the prosecutor, file the motion in the criminal clerk’s office in the courthouse of conviction (with the order and proof of service), and then retain the conformed copy for records. The Court will then set a date for the motion to be heard in court. There are many other issues logistically when filing these motions. Many courthouses have closed since the date of conviction and there are several prosecuting agencies at each courthouse. If your case was already expunged and you were eligible for a reduction then you can still file a motion to reduce your case. The court still has jurisdiction to reduce per Myer v. Superior Court of Sacramento County (1966) 247 Cal.App.2d 133.
As you can tell, expungements are a more complicated process than the first appear. The Law Office of Sarah Sager is experienced in all of the intracacies and can handle your case for you for a reasonable fee. Call us today at 310-713-3281 for a free consultation.