California Expungements – How to Clear Criminal Records

An expungement (under California Penal Code § 1203.4) allows you to withdraw a plea of guilty or no contest, to re-enter a plea of not guilty, and to have the criminal case dismissed. The expungement process releases you from virtually “all penalties and disabilities” of misdemeanor or felony conviction.¹

Here are five key things to know:

1. You may be eligible for expungement if you 1) completed probation and 2) did not do time in state prison (or would not have done prison had your case occurred after “Realignment” under Proposition 47).
2. You are not eligible for expungement if you have an open criminal case or if your conviction was for a serious, violent, or sex offender crime.
3. With the passage of SB 731 and AB 1076, record sealing is an automatic process once the court dismisses your case.
4. Expunged records do not have to be disclosed to an employer even after they make a conditional offer of employment.²
5. If you cannot expunge your record, you may be able to get relief through a Certificate of Rehabilitation, governor’s pardon, or sentence commutation.

To help you better understand Penal Code 1203.4 expungements, our California criminal defense lawyers discuss:

• 1.  California Expungement Law (PC 1203.4)
• 2. How do I expunge a criminal record in California?
• 3. Frequently Asked Questions
• Additional Resources

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. How the California expungement process works

An expungement is a form of post-conviction relief authorized by California Penal Code 1203.4 PC. It releases you from “all penalties and disabilities” arising out of a conviction.

As criminal defense attorney John Murray³ explains,

“In today’s economy — where finding a job is tougher than ever — you want to do everything in your power to make yourself the most desirable candidate.  Clearly, this includes being able to state that you have a clean criminal record–something that a PC 1203.4 expungement may allow you to do.”

Expungements are also beneficial for securing or maintaining California professional licenses and for joining many professional organizations.  Dismissal of an offense offers a “fresh start” from an otherwise criminal past.

Who is eligible to get a California expungement?

As a basic rule, Penal Code 1203.4 PC authorizes an expungement for a misdemeanor or expungement for a felony offense provided you:

1. successfully completed probation (either felony probation or misdemeanor probation), and
2. are not currently:

• charged with,
• on probation for, or
• serving a sentence for

a criminal offense.⁴

If you are applying for PC 1203.4 relief, you must have successfully completed probation in its entirety (or obtained an early termination of probation, discussed below).

What does it mean to “successfully complete probation”?

“Successfully completing probation” means that you:

1. completed all the terms of your probation (that is, paid all fines and restitution, completed any counseling programs, community service, etc.),
2. attended all required court appearances (either personally or through an attorney), and
3. did not commit any new crimes while on probation.

How does “realignment” affect eligibility under PC 1203.4?

If you went to California State Prison — either at the time of judgment or because of a probation violation — you do not generally qualify for a PC 1203.4 expungement.

However, there is an exception if you would have served your sentence in county jail if you had committed the crime after “realignment.” (For more information, please see the discussion on Penal Code 1203.42 in Section 1.4, below).⁵

Can prisoners who worked as firefighters through a prison fire camp get an expungement?

In many cases, yes. Plus you may be able to get your parole waived. Learn more here: California Assembly Bill 2147 (2020).

Who is NOT eligible to get a California expungement?

There are certain felony offenses that can never be expunged. These include serious sex offenses committed against children, such as

• Penal Code 286(c) PC California’s law against sodomy with a child,
• Penal Code 288 PC California’s lewd acts with a child law,
• Penal Code 287 (c) PC California’s law against oral copulation with a child, and
• Penal Code 261.5(d) PC California’s statutory rape law, which prohibits sexual intercourse between persons who are 21 years and older and persons younger than 16.⁶

Can I get an expungement if I violated (or didn’t satisfy) my probation?

It is generally true that you must have successfully completed all conditions of probation to be granted an expungement.

Though even if you received a probation violation, all hope is not lost. The court will hold a special hearing to determine whether you are nonetheless a good candidate.⁷

In the wake of a probation violation, the court has wide discretion as to whether to grant or deny a petition for a PC 1203.4 expungement. Factors that the judge may consider include (but are not limited to):

• your overall performance while on probation,
• the seriousness of the underlying conviction,
• your criminal history, and
• any additional evidence that shows why you are deserving of this relief, such as
  • opportunity to obtain a good job,
  • support of the applicant’s family,
  • strong community ties, etc.

What if I could have been sentenced to county jail under Prop 47 realignment?

If you were convicted and sentenced to state prison, you may still be able to expunge a conviction. You are eligible if you would have been sentenced to jail for the crime had it been committed after 2011’s Proposition 47 Realignment legislation.

This exception is found in California Penal Code 1203.42 PC. Relief under Penal Code 1203.42 is not automatic but may be granted by a court, in its discretion. Judges can grant it if they believe it would be in the interests of justice.

To qualify under PC 1203.42, the crime must have been one currently punishable in county jail AND:

• at least two years have passed since you completed your sentence, and
• you are not:
  • under supervised release for a crime,
  • serving a sentence for any offense,
  • on probation for any offense, or
  • charged with the commission of any crime.

How do I obtain an expungement under PC 1203.42?

The expungement process in California starts by filing a petition with the court under Penal Code 1203.42. You may make the application:

• in person,
• by an attorney, or
• by a probation officer authorized in writing.

The court may then either:

1. Permit you to withdraw your plea of guilty or “nolo contendere” (no contest) and enter a plea of not guilty, or,
2. If you have been convicted after a plea of not guilty, set aside the verdict of guilty.

In either case, the court will then dismiss the accusations against you. Afterward, you will be released from all penalties and disabilities resulting from the offense. It is as if you got a regular expungement under PC 1203.4.

2. How do I expunge a criminal record in California?

Expunging criminal records in California requires the following five steps:

What an Expungement Can Do

There are many benefits to obtaining a California expungement. Some include:

• An employer may not discriminate against your job application based on expunged convictions;
• Easier to obtain a state professional license;
• Expunged convictions cannot be used to impeach your credibility as a witness in court (unless you are the defendant being prosecuted in the subsequent case);¹⁰
• In some cases, helping avoid certain immigration consequences such as deportation; and
• Barriers should be removed from traveling to Canada.⁹

What an Expungement Will NOT Do

Unfortunately, there are several limitations on what an expungement under California Penal Code 1203.4 PC can do. For example, an expungement will not:

• overturn a driver’s license suspension or revocation,¹¹
• restore gun rights under Penal Code 29800 PC – California’s felon with a firearm law,¹² or
• end the duty to register as a sex offender under Penal Code 290 PC.¹³

Expunged convictions may also still be used as prior convictions to enhance sentencing. For instance, an expunged DUI conviction still counts as a prior if you are later arrested for another DUI.

Plus an expunged conviction that would count as a “strike” for purposes of California’s three-strikes law is still a strike.¹⁴

Note that additional rights can often be restored through:

• A Certificate of Rehabilitation, and/or
• A Governor’s Pardon¹⁵

When can I apply for a PC 1203.4 expungement?

If you are eligible under PC 1203.4, you may petition the court to expunge a conviction on the earlier of:

• completion of probation, or
• early termination of probation (which must be granted by a court).

(Note that if you qualify under PC 1203.42, you may only petition the court if at least two years have passed since the completion of your sentence).

As discussed above, certain criminal records are now sealed automatically. Consult with your attorney to see if you qualify.

Can I petition for early termination and expungement at the same time?

Many times, we can expedite the expungement process by “packaging” a number of motions into one. The most common example includes asking the court in a single proceeding to:

• grant an early termination of probation (which the court has the option of granting as long as the petitioner is in compliance with the terms of his or her probation),
• reduce a felony to a misdemeanor (in cases where the felony offense is classified as a “wobbler” — that is, a charge that the district attorney could have filed as either a felony or a misdemeanor), and
• expunge a conviction.

What is the difference between expungement and sealing/destroying records?

Many people who contact us about expungements also wish to “seal and destroy” adult and juvenile criminal records.

Sealing and destroying arrest records per SB 383 is a totally different process from expunging records of criminal convictions under PC 1203.4.

You are entitled to have a California arrest record sealed and destroyed if:

1. you were arrested, but the prosecutor never filed criminal charges, or
2. the case was dismissed in court, or
3. you were acquitted by a jury following a jury trial, or
4. the conviction was overturned and dismissed on appeal, or
5. you successfully completed a program of diversion, such as Prop 36 drug diversion or Penal Code 1000 deferred entry of judgment,¹⁶

Sealing an arrest record generally allows you to state that you have never been arrested for a crime. This is because in order to seal a record the judge must declare you factually innocent.

As mentioned earlier, with the passage of Senate Bill 731 & Assembly Bill 1076 – The Clean Slate Act, most people’s arrest and conviction records will get automatically cleared from their criminal record through a process called “automatic relief”. Learn more here. (Note that automatic relief does not restore your firearm rights.)

Sealing a Juvenile Arrest Record

Sealing a California juvenile court record provides you with the same benefits as sealing an adult record. You may seal a juvenile arrest record if:

1. you are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
2. as an adult, you have not been convicted of any crimes of moral turpitude (that is, a crime involving dishonesty or immoral behavior), AND
3. there is no pending civil litigation based on the juvenile incident.

Once the judge grants the motion to seal and destroy a juvenile arrest record it is sealed for 3 years and destroyed thereafter.¹⁷

3. Frequently Asked Questions about California Expungement Law

Q. Who can access my criminal record after I get an expungement?

A. Criminal records are “public records.” So anyone can access a criminal record even after a PC 1203.4 expungement — unless the record is sealed.

People who often access criminal records include:

• potential employers,
• landlords, and
• licensing agencies.

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Q. What happens when I expunge my record?

A. In California, when a record is expunged, a plea of guilty or no-contest (or a conviction after trial) gets set aside by a judge. You then enter a new plea of “not guilty” and the judge dismisses the case.¹⁸

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Q. How long does it take to expunge my record?

A. Generally, we can have a PC 1203.4 petition filed and heard within one to two months. But this can vary depending on the county in which you reside.

In cases where you are actively seeking employment, we can seek to expedite the process.

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Q. How do I find out if I qualify to have my record expunged?

A. Generally, you qualify for an expungement under Penal Code 1203.4 if you:

1. committed a felony or misdemeanor and were not incarcerated in the California state prison,
2. fulfilled the terms of your probation, and
3. were not convicted of one of the specific crimes that make you ineligible to receive a California expungement.¹⁹

But, to make sure, contact a California criminal defense attorney.

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Q. What is “felony reduction”?

A. If you were convicted of a “wobbler” (that is, a crime that can be charged as either a felony or misdemeanor), you can generally petition to reduce the felony conviction to a misdemeanor.²⁰

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Q. Will you reduce my felony to a misdemeanor prior to expunging the record?

A. Yes. If your conviction was for a wobbler, we will petition the court to have the felony reduced to a misdemeanor prior to having it expunged under PC 1203.4. We will also ask for an early termination of probation where appropriate.

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Q. Does it cost more to have my felony reduced BEFORE expungement?

A. No. The price is the same. Reducing the felony first just expedites the process.

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Q. Do I have to appear in court?

A. Generally not.  The California expungement process typically allows a lawyer to appear on your behalf through all stages of the proceedings.²¹

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Q. What is the filing fee for a California expungement?

A. It varies, depending on

1. the county in which you reside, and
2. whether you were convicted of a misdemeanor or a felony.

For example, San Diego County charges a petition fee of $60 for a misdemeanor and $120 for a felony.

All counties have some type of financial assistance available if you are unable to pay.

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Q. How will I know that my California criminal record was expunged?

A. We provide you with a signed order by a California Superior Court Judge setting aside the conviction and dismissing the case.

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Q. After my record is expunged, can I answer “No” if I’m asked whether I have a criminal record?

A. Yes. This is one of the benefits of obtaining a PC 1203.4 California expungement. Once the court grants an expungement, you can legally answer “no” if asked about a criminal record UNLESS:

1. You are applying to become a peace officer or run for public office,
2. You are applying to work for the California Lottery Commission, or
3. You are applying for a state license.²²

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Q. Will expunging my record help me find a better job?

A. Many times, yes.  If the employer doesn’t run a background check, they will probably never find out about the conviction. Remember — you no longer have to disclose any conviction unless and until the employer makes a conditional offer of employment.

But even if an employer does conduct a background check, it will show if a conviction was expunged. This will tell the potential employer that a California court has said you are ready to make a “fresh start”.

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Q. Will expunging my record help me obtain a state license?

A. Often times, yes. Many California state licensing authorities require expungement of a conviction under Penal Code 1203.4 PC before they will issue a license.

But even when an expungement is not enough, we may be able to help you obtain a “Certificate of Rehabilitation,” which offers even more benefits.²³

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Q. What is a “Certificate of Rehabilitation”?

A. A Certificate of Rehabilitation (“COR”) is a court order stating you have been rehabilitated from your criminal past.²⁴

You must wait between seven (7) and ten (10) years after being released from custody, depending on the specific offense for which you were convicted.²⁵

There are many benefits to a Certificate of Rehabilitation, including:

1. A certificate of rehabilitation becomes an automatic application for a Governor’s Pardon;
2. You cannot be denied a state license without other cause;
3. A COR sends a message to prospective employers that you have overcome your criminal history and are prepared to make a fresh start.

But remember — an expungement or COR is not necessary for an arrest that did not result in a conviction. Employers (and prospective employers) may not discriminate against you based simply on arrests. In fact, they aren’t even legally allowed to inquire about them.²⁶

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Q. What is a Governor’s Pardon?

A. A Governor’s Pardon is the ultimate relief from the penalties and disabilities associated with a criminal conviction.²⁷

You must usually wait at least ten (10) years after being discharged from probation or parole in order to apply to the governor for a pardon. Or you must obtain a finding of factual innocence (discussed above under section 2. sealing and destroying records).²⁸

If you receive a Certificate of Rehabilitation, you may apply for a pardon in as little as seven (7) years after release from custody. This is because a COR acts as an automatic application for a pardon.

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Q. What are my options for sealing and destroying my California arrest records after I get an expungement?

A. There are a number of ways to seal records. The most common are:

1. sealing of juvenile records,
2. sealing of arrest records, and
3. sealing of records after plea withdrawal and case dismissal.

Juvenile arrest records

In order to be eligible for sealing a juvenile record, two criteria must be met:

1. The juvenile court jurisdiction must have terminated at least five years ago.
2. You must not have suffered a conviction for a crime of moral turpitude (that is a dishonest or immoral crime) as an adult.²⁹

But even if these two criteria have been met, certain serious crimes cannot be sealed.³⁰ These crimes include:

• murder,
• robbery and
• child molestation.

Sealing of records generally

Except as set forth above, sealing an arrest record is generally possible if

1. You were arrested and no accusatory pleading was filed,
2. The DA dismissed the case, or
3. You were found “not guilty” after a California jury trial.³¹

Also, if you prove that you were factually innocent of the charges, the arrest record will be ordered sealed for 3 years and destroyed thereafter.³²

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Q. I have a felony and can’t get a green card or citizenship. Can you help me?

A. Many times, yes. We are often able to get a non-U.S. citizen’s wobbler felony reduced to a misdemeanor. This makes you eligible for permanent residency and ultimately U.S. citizenship. Or we may be able to get a conviction set aside completely.

Once we review the facts and circumstances of your case, we research the most promising options to help avoid immigration issues such as deportation or removal.

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Q. I am required to register as a sex offender pursuant to California Penal Code 290 PC.  Can an expungement help me obtain relief from my lifetime duty to register as a sex offender and get off Megan’s list?

A. No.  A California Penal Code 1203.4 PC expungement cannot provide this type of relief. But a Certificate of Rehabilitation and Governor’s pardon often can, as long as the conviction was not for a sex crime against a child.³³

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Q. What about my past marijuana convictions?

A. The California Department of Justice reviewed and sealed all past marijuana convictions that are no longer considered crimes now that recreational marijuana is legal. This process should have been done by July 1, 2020. See California Assembly Bill 1793 (2018).

Additional Resources

For more information, refer to the following:

• Clean Your Record – Step-by-step guide provided by the California Courts Self-Help Guide.
• Expungements – Instructional materials and templates provided by the California Judicial Branch.
• Petition and Order for Expungement – Template provided by the California Judicial Branch.
• California is clearing criminal records — including violent crimes — to offer second chances – article by CalMatters.
• California Residents Can Self-Expunge Criminal Records with New Form – article by L.A. Focus.

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Legal References: