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California Law & Benefits of Expungement.

By Darren Chaker, www.DarrenChaker.com


What is 1203.4 Relief?
Although the past cannot be completely erased, some relief from the disadvantage
s of a criminal conviction is available. Penal Code Section 1203.4 permits defen
dants, previously convicted of a probation or have been discharged early, to hav
e their case dismissed and a plea of 'not guilty' replacing a guilty plea/verdic
t.
If the petition is granted, the person must be released from all disabilities re
sulting from the conviction. Perhaps the most significant benefit applies to fut
ure applications for employment in the private sector. By regulation, a private
employer cannot ask a job applicant about any misdemeanor dismissed under Penal
Code 1203.4. (Cal.Code Regs 7287.4(d). Penal Code Section 1203.4a provides simil
ar relief to persons convicted of a felony or misdemeanor, who have successfully
completed their sentence.
Automatic Entitlement
If the person successfully completed probation (or had his or her probation term
inated early), and is not then serving a sentence, on probation, or charged with
any new offense, relief must be granted. People v. Hawley (1991) 228 Cal.App.3d
247, 249. But, relief need not be granted when probation expired without succes
sful completion. People v. Covington (2000) 82 Cal.App.4th 1263 (failure to make
full restitution).
Persons convicted of a felony and sentenced to prison: If you were convicted of
a felony and sentenced to prison (either initially or after having had your prob
ation violated), you are not eligible for relief under Penal Code 1203.4.
Many sex related offenses: Penal Code 1203.4 relief is not available for violati
ons of Penal Code 286(c), 288, 288a(c), 288.5, 289(j), or any felony conviction
for a violation of 261.5(d).
The Bad News
A dismissed charge may still be pled and proved just like any other prior convic
tion in a subsequent prosecution. This means a prior DUI conviction will remain
available for ten years to enhance the penalty for any subsequent DUI offense. S
ee People v. Diaz (1996) 41 Cal.App.4th 1424 (dismissed charge used as strike al
so under Three Strikes law).
A person who secures Penal Code 1203.4 relief must still disclose the conviction
in response to any direct question contained in any questionnaire or applicatio
n for public office or licensure by any state or local agency, or for contractin
g with the state lottery.
Dismissal does not make the conviction records unavailable to the public. People
v. Field (1995) 31 Cal.App.4th 1778, 1787.
The Very Good News
Expunged conviction (dismissal) is inadmissible as impeaching evidence. People v
. Mackey (App. 2 Dist. 1922) 58 Cal.App. 123, 208 P. 135. "Penalties and disabil
ities" in Section 1203.4 providing that defendant who fulfills conditions of pro
bation shall thereafter be released from all penalties and disabilities resultin
g from the offense or crime of which he was convicted has reference to criminal
penalties and disabilities or to matters of a criminal nature. Copeland v. Depar
tment of Alcoholic Beverage Control (App. 2 Dist. 1966) 50 Cal.Rptr. 452, 241 Ca
l.App.2d 18 People v. Field (1995) 31 Cal.App.4th 1778 in which expunged felony
convictions were held to be inadmissible for purposes of impeaching witnesses. (
Id. at p. 1787.) See also, Cal. Const., art. I, § 28, subd. (f) (prior felonies usa
ble for impeachment) do not have any effect because once a conviction has been e
xpunged, it no longer is a viable conviction for impeachment purposes.
By virtue of expungement, there no longer is a prior conviction. People v. Field
(1995, Cal App 4th Dist) 31 Cal App 4th 1778, 37 Cal Rptr 2d 803, 1995 Cal App
LEXIS 87, review denied (1995, Cal) 1995 Cal LEXIS 3255.