Expungement

The standards for expunging a past conviction, and the timing of when a defendant can first request expungement, depend on whether the defendant received probation for the past conviction or served a full sentence.  Expungement is potentially available for:

Misdemeanor convictions where probation was granted; Misdemeanor convictions where probation was denied and jail time imposed; and Felony convictions where probation was granted instead of serving a state prison sentence.

Expungement is not available for felony convictions where a state prison sentence was imposed.  However, in those situations, a defendant may seek a Certificate of Rehabilitation, as discussed below.

1. Expungement When Probation Was Granted (Misdemeanors and Felonies) A defendant who received probation as part of their past misdemeanor or felony conviction is entitled to expunge that past conviction if any of the following conditions are met (and as long as the past conviction is not one where expungement is specifically prohibited, such as certain sex crimes and most traffic crimes):
   • Defendant fulfilled all conditions of probation for the entire probationary period; or
   • Defendant was discharged from probation before its original termination date; or
   • The court determines that, even if neither of the first two conditions is met, expungement should be granted in the interest of justice.
2. Expungement When Probation Was Denied And Defendant Served A Sentence (Misdemeanors Only)

A misdemeanor defendant who received a jail sentence and no probation for a past conviction is still entitled to expungement if they meet certain conditions.  Unfortunately, expungement is not available for past felony convictions if the defendant did not receive probation and served time in state prison.

The conditions for expunging a past misdemeanor conviction where the defendant did not receive probation are:

• One year has passed since the pronouncement of judgment; and
• Defendant fully complied with the terms of the sentence; and
• Defendant is not currently serving a sentence for, and is not charged with another offense; and
• Defendant has lived an “honest and moral life” since the pronouncement of judgment.

Certificates of Rehabilitation (Applicable only to Felonies with a State Prison Sentence and Expunged Misdemeanor Sex Crimes)

A defendant convicted of a felony and sentenced to state prison cannot later have the conviction expunged.  However, the defendant may apply for a “Certificate of Rehabilitation”, which is essentially the first step to a pardon by the Governor.  Certificates of Rehabilitation are also available for past convictions of certain misdemeanor sex crimes that have already been expunged.

A Certificate of Rehabilitation is a court order declaring that a defendant released from prison or convicted of certain misdemeanor sex offenses has been rehabilitated.  If the court grants a defendant’s request for a Certificate of Rehabilitation, it is then forwarded by the court to the Governor’s Office as an application for pardon.

Like an expungement, a Certificate of Rehabilitation can be exceptionally important to a person’s career and personal life.  If a Certificate of Rehabilitation is granted, not only does it automatically become an application for pardon, but it will likely be considered favorably for anyone seeking to obtain any state license.  For persons convicted of certain sex crimes, a Certificate of Rehabilitation will relieve them from registering as a sex offender.

To qualify for a Certificate of Rehabilitation the following the conditions must be met:

• Defendant served time in state prison for a felony conviction, or successfully expunged a misdemeanor conviction that requires sex offender registration pursuant to Penal Code section 290
• Defendant has lived in California continuously for 3 years (for parolees) or 5 years (all other cases) before applying for the Certificate of Rehabilitation
• Defendant presents a satisfactory period of rehabilitation starting from the date released from custody

Expungement of Felony "Wobblers" (crimes that can be charged as misdemeanors or felonies)

A defendant with a past felony conviction for a “wobbler” (a crime that can be charged as a misdemeanor or as a felony), can first ask the court to reduce the felony to a misdemeanor under Penal Code section 17(b).  If this request is granted, the defendant can then seek to expunge the past conviction as a misdemeanor.