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Cleaning up your Clients Record Part 2: Dismissals per 1203.4 aka Expungements

Penal Code §1203.4 sets out the ways in which a prior conviction can be dismissed. There are a number of benefits in doing this for your clients. These include answering no to questions on “non-government” job applications regarding prior convictions, showing reform, passing some types of background checks, etc. There are limitations to 1203.4 dismissals also. Some of these include; not reinstating gun rights, not allowing running for public office if previous conviction prohibited it and they still must disclose conviction for state licensing applications (i.e. real estate, State Bar, Nursing Board, etc), it does not seal the record, it does not relieve 290 registration. Be sure to find out why your client is seeking the 1203.4 to be sure it will accomplish their goals.

In order to file a 1203.4 dismissal there are a number of conditions that must be met.

  1. First off, 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. Basically, they cannot be on probation or in jail or facing a new case. If they are on probation, please refer to Part 1 of this article (Early Termination of Probation).
  2. They cannot have served time in prison on the underlying offense. ( if they were sentenced to prison at the county jail but with no mandatory supervision or if they were just given mandatory supervision then PC 1203.41 will apply not 1203.4)

Once you determine they are not in jail, on probation or have a new case filed against them you want to see how they were sentenced on the underlying offense. Look to see if they were they sentenced to probation (use PC 1203.4) or not (use 1203.4a).

Sentenced to Probation

If they were sentenced to probation then you must see if they successfully completed probation. What that means is did they comply with every order of the court. This includes completing classes on time, paying restitution, paying fines on time, etc. Some courts will consider one late payment a violation of probation and use it as grounds to deny the motion based on the violation. This does not mean you cannot get it expunged it just changes your argument for the motion.

If your client successfully completed probation you then need to see if the charges are specifically excluded from PC 1203.4 relief. The exclusions to 1203.4 are set forth on subdivision b and c of 1203.4

(b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision

(c) of Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.

(c) (1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.

If you get to this point of the analysis then the good news is that the dismissal is mandatory not discretionary as stated in People v. Johnson (2012) 211 Cal.App.4th 252, 149 Cal. Rptr. 3d 482. Under Penal Code section 1203.4, when a defendant has "`fulfilled the conditions of probation for the entire probationary period'" he or she "`is entitled as a matter of right to have the plea or verdict of guilty changed to one of not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed.'" (People v. Covington (2000) 82 Cal.App.4th 1263, 1266 [98 Cal.Rptr.2d 852].) It was apparently intended that when a defendant has satisfied the terms of probation, the trial court should have no discretion but to carry out its part of the bargain with the defendant. (People v. Bradus (2007) 149 Cal.App.4th 636, 641 [57 Cal.Rptr.3d 79], citing People v. Chandler (1988) 203 Cal.App.3d 782, 788 [250 Cal.Rptr. 730]; People v. Hawley (1991) 228 Cal.App.3d 247, 249-250 [278 Cal.Rptr. 389].) The language of Penal Code section 1203.4 is mandatory if a defendant has fulfilled the conditions of probation for the prescribed period or has been discharged from probation. (People v. Bradley (1967) 248 Cal.App.2d 887, 889 [57 Cal.Rptr. 82].)

In the interest of Justice

If your client did not successfully complete probation or if it is one of the offenses the legislature barred from automatic dismissals (such as DUIs) then you will need to prove the granting of this motion is in the interest of justice. There are a number of ways to show it is in the “interest of justice”, such as; immigration applications or deportations, loss of employment, denied future employment, finishing school and applying for jobs requiring background check, law abiding life since the arrest, example to their children of reform, putting this behind them, etc. Basically, you need to give the Judge a good reason to grant the motion. As always, the more documentation the better, First and foremost, have your client provide a sworn declaration stating why they want the expungement, how they have taken steps to address their behavior (no longer drinking, therapy, they were going through divorce, death in the family, etc), describing their remorse, how they have learned from this and will never repeat this behavior. Have them provide as much supporting documentation as possible (applications, denial of employment letter, proof of background check being required, AA meetings, etc). You also want proof of positive things they have been doing in their life (degrees, certificates, volunteer work, proof of employment, grades, etc). Lastly, I like to include letters of recommendations so the Judge and DA can see other people have witnessed the change in behavior and/or remorse. That it is not just the defendant stating how he has changed.

Further, if restitution is owing, then relief is “in the interests of justice” and discretionary. People v. Covington (2000) 82 Cal App 4th 975, 991. Granting a Penal Code §1203.4 does not mean restitution is totally discharged, as it can be ordered paid but not discharge the balance of the restitution owed. A Judge can do both grant Penal Code §1203.4 relief and order the owed amount be enforced as a civil judgement. People v. Seymour (2015) 239 Cal App 4th 1418, 1436.

Moreover, attorney fees and probation costs are not conditions of probation, to successfully complete it. People v. Bradus (2007) 149 Cal App 4th 636.

Also, Penal Code §1203.4 will work for probationers with a suspended prison sentence. People v. Parker (2013) 217 Cal App 4th 498.

If the DA opposes the motion they will look to a number of factors to establish it is not in the interest of justice. Some of these factors include the nature of the offense, time since the offense occurred, conduct during the offense, probation violations, subsequent offenses, bad behavior, no remorse, danger to the public, insufficient need for expungement, etc. Be prepared to address any negative aspects of your client’s case.

Not Sentenced to Probation

If they were not sentenced to probation then you must make sure one year has lapsed since pronouncement of judgment, they have complied with all terms of the sentence and that “since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land.” Basically, did they do what they were ordered to do and not had any subsequent criminal conduct.

Once again if they did not complete everything or if they had a minor violation you can still argue it is in the interest of justice to grant the motion. The same argument and documentation should be made and provided as discussed above.

Practical Tip

I have made it a point to discuss Penal Code §1203.4 motions with my clients prior to entering a guilty plea. I find it gives them extra incentive to get everything done on time. This is beneficial to you, as their attorney, as it will make the 1203.4 motion easier in the future. Include payments by any insurance company to satisfy the victims financial losses. Most insurance adjusters will cooperate in auto accident cases.

©Michael Norton, Esq. and Richard L. Duquette, Esq. All Rights Reserved May 16, 2017