Penal Code section 1203.4 provides a procedural method to dismiss a case after conviction. Commonly referred to as an “expungement,” the remedy provided by section 1203.4 must be granted if all of the necessary conditions are met. It allows a person to claim, for many everyday purposes, that he or she has no record of a criminal conviction. However, it does not restore civil rights (such as the right to own or possess firearms), nor does it erase a person's record of conviction.
Section 1203.4 provides in pertinent part that:
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 . . . 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 was 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. . .
However, even if expunged, a party must disclose the conviction if directly asked in any questionnaire or application for public office, application for licensure by any state or local agency, or for contracting with the California State Lottery.
In appropriate cases, a person convicted of a felony may ask the court to reduce the conviction to a misdemeanor, relying upon Penal Code section 17, subdivision (b). We often use section 17, subdivision (b) in conjunction with section 1203.4 to reduce a felony conviction to a misdemeanor and then to dismiss the case. Section 17, subdivision (b) relief is discretionary, meaning the court does not have to grant it unless it is persuaded that the person deserves it.
Pursuant to Penal Code section 17, subdivision (b):
When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
[ . . . . ]
(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.
The court's discretion to reduce pursuant to section 17, subdivision (b) is very broad, and may be exercised even in cases brought within the meaning of the Three Strikes and You're Out law. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968.) It is a “fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety” into consideration . . . .” (Id. at pp. 981-982.)
If you are interested in pursuing the post-conviction remedies available to you through the application of these statutes, please call me today.