Expungement in California
Criminal Record Expungement Lawyer
At the Law Office of Jeffrey T. T. Hammerschmidt, we are ready to provide the relief you and your family deserve. We invite you to learn more about filing for expungement and the benefits of your juvenile or adult criminal record sealed from the public. It can make a huge difference in your future.
Contact the Law Office of Jeffrey T. Hammerschmidt. Call 559.233.5333.
Long-term effects of a criminal conviction
Your criminal record can prevent you from being hired for a great job, obtaining certain professional licenses, obtaining permanent residency and U.S. citizenship, renting a home or apartment and getting other benefits of society we take for granted.
Employers and educational institutions routinely conduct background checks on current and prospective employees, and the Internet readily provides data obtainable to anyone (including prospective employers) curious about your past.
If you are currently employed as a licensed professional, a subsequent criminal conviction can adversely affect both your job and your license to practice in your profession. You must therefore take control of your future and regain the rights you lost from the conviction.
The expungement process
Our goal is to clear your history of criminal charges (adult and juvenile) that might adversely affect your chances of employment or education.
Although a complex legal process, our firm can expunge your criminal record within a short period. Once your probation period has successfully ended, we make a request to have the criminal conviction reversed, set aside or dismissed. This process applies to misdemeanor and felony cases in which you were not sentenced to state prison or under the authority of the California Department of Corrections.
The expungement process begins with a motion to withdraw a plea retroactively. This means that a judge reopens your case and for good cause allows you to withdraw your plea of guilty or nolo contendere (no contest) and enter a not-guilty plea. The court will then set aside and dismiss the conviction nunc pro tunc (Latin for “retroactively”). From that point forward, you are considered no longer convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.
Benefits of expungement
Once we have successfully expunged your criminal conviction, if a private employer asks if you have ever been convicted of a crime, you can respond with “No.” Most federal and California government applications however, ask you, under penalty of perjury, if you have ever had a case expunged or cleared from your record, and you have a duty to answer this truthfully. Also, if you are applying for public office or a state license (i.e. real estate, doctor, lawyer, stockbroker, etc.) you must disclose the conviction. Even so, the fact that a court found good cause to expunge your conviction weighs in your favor.
How does your probationary status affect the expungement process?
Once convicted of a crime, you are generally put on probation for a set period of years. If you were convicted of a misdemeanor, you were most likely placed on three years' probation. For felonies, your probationary period may have been anywhere from three years to five years (or longer in some cases). The distinction between felony and misdemeanor probation is significant in that misdemeanor probation is informal while felony probation is formal (i.e. you will have to periodically check in with a probation officer).
Once placed on probation, you may not have to remain on probationary status for the entire period (i.e. three to five years). By simply completing the terms of your probation, such as payment of all fines/restitution and completion of any jail time or court-ordered programs (i.e. anger management or alcohol programs, etc.), you may be eligible to apply for early termination of probation.
Pursuant to California Penal Code 1203.3, a request for the early termination of your probation can be made upon the successful termination of your probation. Our office can then petition the court for expungement pursuant to California Penal Code 1203.4 to have your conviction dismissed.
Misdemeanor expungements
If you have been convicted of a misdemeanor, that conviction is going to remain on your record forever. However, pursuant to California Penal Code 1203.4, our office can expunge your misdemeanor conviction once you have successfully completed all the terms of your probation. In the event your probation was violated but later completed successfully, our office may still be able to expunge your conviction since California law provides criminal courts the discretion to expunge convictions in such cases.
The misdemeanor expungement process
Our office will begin the process by filing a motion and petition with the same court in which your conviction to be expunged took place. Your petition will then be sent to the probation department for review. The probation department will thereafter submit a report to the court and your case will be set for a hearing. Once the court grants your expungement, your conviction will be set aside, a plea of not guilty entered and your case dismissed. The court will then send a copy of the court order to the Department of Justice to update your criminal record.
If you pled guilty or no contest to an offense but were granted a terminal disposition (i.e. were not placed on probation), your conviction can be expunged pursuant to California Penal Code 1203.4a one year after the date you pled guilty or no contest.
Felony expungements and reductions
In California, your felony conviction can be expunged if: 1) you were granted probation, rather than sent to state prison (or placed under the authority of the California Department of Corrections) and 2) you successfully completed all of the terms of your probation.
The court, in considering your case, will need to know whether you: 1) have been convicted of a new offense, 2) are charged with any new offense or 3) are currently on probation for any other offense. Our office also recommends that you obtain some character reference letters for us to include in the motion we file on your behalf.
Because many felony violations are really “wobblers” (i.e. they can be filed as a misdemeanor or a felony), our office may be able to have your case reduced to a misdemeanor if your felony conviction falls into this category (California Penal Code 17(b)). Once your felony conviction is reduced to a misdemeanor, it can then be expunged from your criminal record (California Penal Code 1203.4). Upon the successful reduction of your felony to a misdemeanor, you will no longer be considered an “ex-felon” and will be relieved of the restrictions imposed on ex-felons (i.e. denial or loss of state licenses, possession of firearms, jury duty, etc.).
The felony expungement process
Our office will begin the process with the filing of a motion and petition with the court. Your case is then sent to the district attorney’s office and the probation department for review. The probation department will thereafter submit a report to the court and your case will be set for a hearing. Your appearance in court will be necessary when dealing with a prior felony offense. Once the court grants your expungement or motion to reduce the felony to a misdemeanor, your conviction is set aside, a plea of not guilty entered and your case is dismissed. The court will then send a copy of the court order to the Department of Justice to update your criminal record.
The following convictions cannot be expunged: conviction for violations of Vehicle Code Section 42001(b) [failure to comply with any lawful direction by a peace officer] or Penal Code Sections 286(c) [act of sodomy on a minor], 288 [lewd and lascivious acts on a child], 288a(c) [oral copulation with a minor], 288.5 [three or more acts of sexual conduct with a minor], 289(j) [act of sexual penetration with a minor] or any felony conviction of Penal Code Section 261.5(d) [unlawful sexual intercourse with a minor].
Sealing your criminal record
Did you know that your arrest record is public information? Even if your case has been dismissed or no charges were ever filed against you, your arrest record, the minutes from your court hearings and your case disposition still exist as a public record until you take control and move to have those records sealed.
The benefit of sealing your arrest record is extensive since anyone with the ability to run a background check on you that included a rap sheet would be able to discover all of your prior criminal arrests. Moreover, prospective employers or educational institutions can search for your name at the courthouse or on certain government Web sites to try to find information regarding your criminal history.
An arrest record can be sealed if you were arrested and:
- No complaint was filed.
- The complaint filed was later dismissed.
- You were acquitted following a trial.
- You were found to be factually innocent.
Our office will begin the process of sealing your arrest record with the filing of a request with the original arresting agency. If the arresting agency denies the petition then we will file a motion with the court in the county where the arrest occurred and your case will then be set for a hearing. At the hearing, Mr. Hammerschmidt has the burden (on your behalf) of demonstrating your factual innocence. Once the motion is granted, the court will send the court order to seal your arrest record to the Department of Justice. After the Department of Justice has sealed and destroyed your records, it is as if the arrest never happened.
Sealing of a juvenile record
Your juvenile records do appear on your criminal record. Upon your 18th birthday, you are eligible to petition to have your juvenile records sealed. Once sealed, no one can gain access to them and they will be completely destroyed five years from the date of sealing.
Juvenile records are not automatically sealed upon your 18th birthday. You must affirmatively petition the juvenile court to have them sealed.
If you were convicted as a juvenile and you were not sent to the California Youth Authority, our office can serve a petition on the court to seal and destroy the records of your conviction. Once the petition is granted, the records of your arrest that are in the custody of the juvenile court, the probation officer and any other agency, including law enforcement agencies and public officials, will be sealed and later destroyed.
Once the record is sealed, the proceedings in your case shall be deemed never to have occurred and you can deny ever having had the conviction.
Marijuana possession offenses
Marijuana and other drug convictions do NOT automatically disappear from your record after two or three years. In California, this only occurs automatically for simple possession of marijuana for personal use (i.e. not for sale) or for offering to give away or transport less than an ounce of marijuana (Health and Safety Code sections 11361.5 and 11361.7). If you were convicted of these offenses in 1976 or later, your record will automatically be expunged two years later (it is always a good idea to confirm that this has happened). For all other California drug cases, including all other marijuana cases, a petition seeking to expunge your conviction must be filed with the court.
Diversion or deferred entry of judgment
If you were referred to a diversion program pursuant to Penal Code Section 1001 or Proposition 36, your record will show a dismissal if you successfully completed all of the diversion program requirements. If you did not complete your requirements or were not actually given diversion, then the conviction will be on your record.
What an expungement will not do
Even if you have been granted an expungement, a criminal court can still use your prior conviction to increase your punishment for a new or subsequent crime (i.e. under California three strikes law) or in immigration/deportation proceedings. In addition, if you are a registered sex offender, an expungement will not relieve you of your duty to register pursuant to California Penal Code Section 290. Finally, although your record has been successfully expunged, you will still not be permitted to possess a firearm.
Contact us to discuss and expungement or record sealing. Call for a free consultation.
The lawyers at The Law Office of Jeff Hammerschmidt represent expungement clients throughout all of California including Fresno, San Diego, Salinas, Bakersfield, Los Angeles, San Diego, Santa Barbara, San Francisco, and Sacramento.
