How do I expunge a misdemeanor in California?

To expunge a misdemeanor in California, you have to (1) determine that you are eligible for expungement, (2) timely file the appropriate paperwork, and (3) attend the expungement hearing personally, or through a lawyer. Any error in the process can lead to a denial. A denial can keep you from benefiting from sealing your criminal history.

What is the California expungement process?

To expunge a misdemeanor conviction in the state of California, you have to:

• complete any probation imposed in the criminal case,
• make sure the offense is one that can be expunged,
• file the right paperwork in the correct superior court within the proper timeframes, and
• attend the expungement hearing, whether personally or through an attorney.¹

The process also works for eligible felony convictions, as well.

When can I start the process?

If you want to expunge a criminal conviction, you generally have to wait until you have completed your probation.² If the offense was a felony covered by the Proposition 47 Realignment Act, you may also have to wait an additional 2 years to initiate the process.

Whether it is formal probation or summary probation, all of the terms and requirements of the program have to be done before you are eligible. This includes the payment of any victim restitution and the completion of all community service requirements. If you are eager to expunge the record, you may be able to complete probation early. You still have to get a court order to grant an early termination of probation before you can start the expungement process.

If you violated probation, it can hurt your chances of getting an expungement. However, it can still happen. The court will just hold a special hearing to decide whether the interests of justice mean that the court should overlook the probation violation.

If you are represented by a local law firm, your attorney will likely package these motions together. You can apply for an early termination of probation and for an expungement at the same time. If the offense was a wobbler, your criminal defense lawyer may also file a motion to reduce the felony to a misdemeanor, as well.

Are misdemeanors the only offenses that can be expunged?

No. California criminal law allows some felonies to be expunged, as well. For a criminal offense to be eligible under California’s expungement law, you must have:

• completed probation, and
• not be currently:
  • facing criminal charges,
  • on probation for a different criminal offense, or
  • serving a sentence for a different crime.³

Additionally, you generally must not have served time in California state prison – as opposed to county jail. Serving time in prison at any point in the sentence, whether from the court’s initial judgment or due to a probation violation, generally strips the offense’s eligibility for an expungement.

However, the Proposition 47 Realignment Act provides some exceptions to this rule. If you would have been sent to county jail, rather than to state prison, for an offense that occurred after 2011, you may still be eligible for expungement.⁴ If this is the case, it is in the judge’s discretion to grant an expungement.

There are certain felony convictions that can never be expunged. They tend to be for severe sex crimes involving children. Some of these include:

• statutory rape (Penal Code 261.5(d) PC),
• sodomy involving a child (Penal Code 286(c) PC),
• oral copulation with a child (Penal Code 287(c) PC), and
• lewd acts with a child (Penal Code 288 PC).

What paperwork has to be filed?

To get an expungement after a guilty plea or after pleading no contest to the charge, you have to file a petition for dismissal. First, you have to withdraw your plea and enter one of not guilty. If the conviction happened by verdict, you have to request the court to set the verdict or court record aside. Once this is done, a hearing will be scheduled.

You generally will not have to attend this hearing, so long as your expungement attorney is there.

At the hearing, you or the attorney will have to show that it is in the interests of justice to expunge the conviction from your criminal record.

If the judge agrees with you, the conviction will be set aside and the charges dismissed.

However, the prosecutor has to be notified at least 15 days before the hearing.⁵ This is to give the district attorney time to challenge the expungement. If the prosecutor does not object to the expungement, he or she cannot challenge it, later on.⁶

There is also a filing fee to pay. The amount of this fee depends on the county and the type of offense being expunged. Generally, the filing fee is the least expensive for expunging infractions, and the most expensive for expunging felonies.

What are the benefits of expunging a criminal record?

An expungement releases you from nearly all of the penalties and disabilities from the conviction.

The benefits of expunging a conviction, even a misdemeanor, are significant. Some of the benefits are:

• making it easier to get hired at a new job,
• retaining or becoming eligible for professional licenses or certifications, like a real estate license,
• becoming eligible for professional organizations,
• not having the prior conviction be used to impeach you during a later court proceeding, and
• ending the social stigma of having a public record of criminality.

Among the most important benefits of expungement is to hide the conviction from many types of background checks, including those that check FBI records. This can make it much easier to get a job and earn a living after serving a prison sentence.

However, there are some things that expunging a record will not do. These include:

• overturn a suspension or revocation of a driver’s license,⁷
• restore the right to bear arms under California law,⁸ or
• end the duty to register as a sex offender.⁹

These obstacles may only be resolved with a:

• California Governor’s Pardon, or
• California Certificate of Rehabilitation (COR).

Additionally, expunging a criminal record will not necessarily seal the arrest record.

Expunging is a separate process from sealing. With the passage of Senate Bill 731 & Assembly Bill 1076 – The Clean Slate Act, most people’s arrest and conviction records will get automatically sealed. Learn more here.

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