Expungement is not the same as sealing a criminal record. Expungement dismisses a conviction, whereas sealing a criminal record means destroying all documentation related to a wrongful arrest. Expungement is for arrests that resulted in convictions, while an individual who was arrested, but not convicted, may have her criminal record sealed. Although working with a lawyer to pursue an expungement can be beneficial, an individual in California can complete the expungement process on his own.
Completing a Felony Expungement in California
Expungement is the process of removing a conviction from a criminal record. This process is similar from state to state, but varies slightly in which offenses can and cannot be expunged and the process an individual has to complete in order to have a conviction expunged. In California, the expungement process works as follows:
- The individual files a Petition for Dismissal with the superior court of the county that handled the original case.
- A hearing is held to determine the filer’s eligibility for expungement.
- If the expungement is granted, the case is reopened, the guilty verdict or plea is withdrawn, and the charge is dismissed.
After determining whether he qualifies for an expungement, the petitioner downloads or otherwise obtains the forms necessary to complete the process. Along with the Petition for Dismissal, he must provide a copy of his criminal record and all other documents related to the offense, such as proof that he completed terms of his probation. Additionally, he may opt to include character references with his petition. The petitioner files these documents with the superior court that handled the case he is seeking the expungement for and pays a $120 fee for a felony expungement, which the court will waive if he demonstrates sufficient financial hardship.
During the hearing, the petitioner may face objections to the expungement from the county prosecutor. He has the right to respond to these objections and to make his own statements to the court about why expunging his record is justified. The court has the discretion to grant the expungement or not, based on the filer’s behavior since the time the original conviction was entered. The court will also take into consideration any other convictions or arrests on the record that raise concern.
Read More: How to File a Petition for Expungement
Which Convictions Can Be Expunged?
Convictions for certain misdemeanors and felonies cannot be expunged in California. These include:
- Failure to stop and comply with a vehicle inspection when asked to do so by law enforcement.
- Sodomy, oral copulation or lewd acts with a child.
- Violation of California’s statutory rape law.
Additionally, a conviction that resulted in the individual being sentenced to state prison cannot be expunged unless it is an offense for which the individual would instead be sentenced to county jail if he were to be convicted of it now.
An individual who otherwise would qualify for a felony expungement in California does not qualify if he:
- Is currently on probation for a criminal conviction.
- Is currently facing a pending criminal charge.
- Is currently completing a sentence for a criminal conviction.
Understanding California Expungement Laws
California expungement laws generally permit any individual to expunge a felony or misdemeanor from her criminal record as long as she:
- Successfully completed her probation term for the conviction, and
- Either did not serve time in state prison or would not serve time in state prison if she were convicted of the offense now.
When a conviction is expunged, the arrest remains on the filer’s criminal record. What changes is the outcome of the arrest. Rather than stating that the individual was convicted of the offense, the record states that the charge was “dismissed in the interests of justice.” This enables the individual to answer “no” when he is asked on job applications, potential landlords or others whether he has been convicted of a criminal offense.
Individuals convicted of certain marijuana-related offenses do not have to complete the expungement process in order to clear their records. Once recreational cannabis was legalized in California, the state government began the process of reviewing and sealing cases that are no longer criminal offenses under current California law. This process is expected to be complete by 2020 and requires no further action on the part of those with qualifying marijuana convictions on their criminal records.
- Attendance at the hearing on your petition is mandatory. If you fail to show, your petition will be denied.
- You will not be charged a filing fee when you submit your petition to the clerk; however, the court can charge up to $120 after it rules on your petition. If you cannot afford to pay the fee, ask the court for a fee waiver.
Lindsay Kramer is a freelance writer and editor who has been working in the legal niche since 2012. Her primary focus areas within this niche are family law and personal injury law. Lindsay works closely with a few legal marketing agencies, providing blog posts, website content and marketing materials to law firms across the United States.