California statutes classify criminal violations into felonies, misdemeanors, and infractions. A guilty verdict for a felony attracts a lengthy prison sentence, death sentence, hefty court fines, and a criminal record that haunts you after serving your sentence. Based on the circumstances, sometimes a felony sentence can result in jail incarceration.
A felony violation is severely punished and has severe collateral consequences, making you wonder whether you can dismiss it. Yes, you can expunge or dismiss a felony history to overcome the social stigma of a conviction and regain your civic rights. The eligibility for expunction is highlighted below, the benefits of expunging a felony, and the legal process involved.
Felony Expungement Definition
Before delving deeper into the expungement process, it is crucial to understand felony expungement. According to PEN 1203.4, an expungement is a legal avenue that lets you withdraw a guilty plea or no contest and plead not guilty for a charge dismissal. The process discharges you from all disabilities and legal penalties stemming from your conviction. Therefore, a felony expunction gives you, a felon, and a clean slate by setting aside or dismissing your guilty verdict. The history is not erased, but the public database is adjusted to conceal your record from the public and show your conviction is dismissed.
Common Felony Expunction Misconceptions
Many people have the mistaken belief that felony crimes cannot be expunged. Nevertheless, with the guidance of a competent criminal attorney, you can lower the felony to a misdemeanor and then petition for an expunction.
The timeframe for a felony expunction ranges from ten to sixteen weeks based on the time that has elapsed after the guilty verdict, the complexity of your charges and the adjudicating court. Complex felonies take an extended time to dismiss than the standard ones. You should know that a record dismissal does not happen automatically. You should file a petition with the court for the dismissal with the guidance of a skilled attorney.
Most Felony Crimes are Wobblers
Several California criminal offenses are not straight felonies but wobblers. Depending on the case's facts, the DA decides whether to charge a violation as a felony or misdemeanor. An experienced legal representative will compel the prosecutor to lower the charges to a misdemeanor to enable an expunction. Drug offenses are automatic felonies; hence, there is no option of reducing them to misdemeanors. Besides, if you serve time in prison for a felony sentence, you are ineligible for expunction.
Benefits of a Felony Expunction
Once your felony criminal record has been expunged, you are no longer required to reveal your record to potential employers and property managers. This is the primary benefit of an expungement because these parties will have no reason to victimize you. The law prohibits employers from discriminating against applicants with an expunged record. After your offense has been expunged, employers must treat it as if you were never convicted in the first place. Even if they learn about it, they cannot use it to deny you the job opportunity.
Other benefits of an expunction include:
- It becomes easier to obtain professional licenses
- An expunged record cannot be used in court to impeach your integrity as a witness unless you have an active case in court.
- In particular instances, an expunction will have immigration repercussions like inadmissibility and deportation.
Limitations of Felony Expunction
Previously, your criminal history was only accessible to law enforcement. However, today, information firms index criminal judicial records in national databases, making it easy for prospective employers, licensing agencies, and professional bodies to access the information and run background checks on your record in a matter of minutes. Therefore, it is crucial to expunge your conviction, and this explains the recent surge in value for expunction.
Expunging your sentence comes with several limitations. Because you have obtained a criminal record dismissal, your record will not cease to exist. The records will still be available for public view.
Similarly, a felony expunction will not reverse the suspension or withdrawal of the driving privilege. Again, the dismissal will not reinstate your California firearm rights under PEN 2800.
If the guilty verdict affected your suitability for public office, an expunction would not reinstate these rights. Additionally, if the court imposes the condition to enlist as a sexual predator, the dismissal will not end this obligation. If your name already appears on the Megan's Law Website, it will remain visible to the general public until the registration duration lapses, even after obtaining an expunction.
An expunged felony sentence will not stop the prosecutor from using it in court during sentencing for penalty enhancement in a subsequent crime. A dismissed felony will be counted as a strike.
Do not let these limitations discourage you from seeking felony expunction. Speak to a competent criminal attorney to find alternatives for resolving these limitations, like the governor's pardon and a rehabilitation certificate. Also, if your gun rights have been revoked, your lawyer can have the felony lowered to restore your rights.
The Role of Your Attorney in an Expungement
Not every felon satisfies the criteria for expunction. Again, the nature of your case can impact the expungement filing process. So, you must understand your case's facts to establish your dismissal eligibility. You should hire an experienced legal representative to discuss your case and decide your eligibility. The duties of your attorney in the case are:
Request and Obtain the Necessary Duplicates of your Sentence History
The documents you receive from the court after a guilty verdict are your felonious records. They contain all the pertinent details of the criminal conviction. Additionally, you can ask for extra paperwork from the lawyer who represented you in the felony trial, parole officer, probation officer (PO) or the superior court that issued the guilty verdict. Copies of these documents will be crucial in filing for expunction. If it is your first time expunging a record, your legal counsel can request these copies.
Establishing your Eligibility
Another responsibility of your post-conviction attorney is to establish whether you qualify for record expunction. You qualify to dismiss your felony record if:
- You have completed your felony sentence by finishing your jail or prison sentence, you have satisfied all parole and probation terms, paid court fines or fees and restituted your victims. Fulfilling these requirements indicates your commitment to meet all the conditions of the justice system.
- You have no active or current charge or guilty verdict. A lack of pending criminal counts or convictions demonstrates your dedication to being a law-abiding citizen and your desire to change from past behaviors.
- Your felony conviction led to formal probation and not prison incarceration. Therefore, if the judge sentences you to probation, community labor or other punishments apart from imprisonment, you qualify for expunction.
- You were found guilty of the felony crime in a California court and not a federal one
- You must wait for at least twelve months after the guilty verdict if the court does not sentence you to probation. To apply for an expunction, you should wait for a particular duration, depending on the nature of your case and the type of sentence. During this duration, you should obey the law and all other requirements imposed by the authorities. The waiting period exists to ensure long-term rehabilitation.
- You were not convicted of a violent or serious felony. Non-violent or non-serious felonies qualify for expunction. These felonies include property offenses, white-collar offenses, and other crimes that do not involve violence or lead to substantial bodily harm.
- You were sentenced for a felony violation that was later reduced under Prop 47 or 64.
- Your felony qualifies for reduction to a misdemeanor under the law. Lowering a felony to a misdemeanor allows for expunction.
- You participated in a diversion program after the felony conviction and completed the program.
It is worth understanding that for a felony expunction to happen, the offense must first be lowered to a misdemeanor. Therefore, if the prosecutor files your felony as a wobbler, you are likely to qualify for expunction after a charge reduction. Your attorney will evaluate the case's circumstances to determine your eligibility.
Ineligibility for Expungement
You do not qualify to expunge your felony offense if the following is true:
- You have an ongoing sentence for a crime; whether it is linked to the felony you wish to dismiss or a separate offense, you will not qualify for expunction.
- Your conviction was for a serious or violent felony like a sex offense against minors or one that carries harsh penalties. The objective is to protect the public and prevent dangerous felons from clearing their records.
- You have several felony guilty verdicts that resulted in prison incarceration or happened within a short duration.
- You have an ongoing criminal charge, indicating that you have not abandoned your old ways and are not committed to being a law-abiding citizen.
- You are serving formal probation and have not obtained an early termination
Collect Conviction Details
Your legal counsel will also be responsible for gathering all details related to your sentence. For instance, when you have several convictions, your attorney will gather the following information for the expunction procedure:
- Case or docket number
- A court decision
- If you pled guilty or no contest
- Information on your sentencing, including your prison sentence and where you served the sentence, release date and when you were discharged from the prison
- Your parole and its end date
Your attorney should gather all this information.
Determine Probation Status
A crucial consideration your attorney takes to determine if you meet the requirements for expungement is your probation standing. If the court did not sentence you to probation in the first place or you have satisfactorily completed the program, you qualify to dismiss your felony record.
If you have not completed probation, you should petition for an early termination of the program to seek an expunction. It would help if you petitioned for early termination, where the court will evaluate the reasons for your application in a hearing and determine whether or not to grant the petition. The court's decision on the matter is contingent on:
- Your sentence and its severity
- Your criminal history
- Your capacity to obtain meaningful employment after the court grants the early termination
- The reasons you are deserving of the early termination, like your conduct during probation
- Your community standing, parties that depend on you for financial support like children, or the volunteer activities you have engaged in the past.
Most defendants assume that they are ineligible for an expungement because they are violating probationary terms. However, the truth is that even with a violation, you can still petition for an expungement and appear for the probation termination hearing for a court's decision on whether you will obtain the early termination.
Expungement Filing Process
Now that you are familiar with felony expungement, its benefits, limitations and eligibility, it is time to apply for the post-sentencing relief. The steps you should take when applying for expungement are:
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Partnering with an Experienced Legal Counsel
Before commencing an expungement procedure, it is advisable to talk to a competent attorney with experience in felony record expunction. A skilled attorney will offer bespoke guidance, determine your eligibility, and prepare the petition adequately to increase the likelihood of success.
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Order and Fill Out the Necessary Forms
Once you have hired an attorney, the next step is identifying the documents you will require for the petition. Your attorney should locate these documents for you. If you are still serving probation, your filing process will begin with requesting an early probation termination.
When the court declines your request, you can seek probation dismissal. You can find the forms in the local courthouse, and if they are unavailable, your legal representative can write down the dismissal application. When planning to dismiss a felony record, you must begin by reducing the crime to a misdemeanor. Because most felonies are wobblers (meaning they could also be filed as misdemeanors), you can file a motion in court to reduce your felony offense to a misdemeanor.
For other kinds of felonies, you should fill out forms provided under PEN 17(b) (3) to obtain a charge reduction. You will find the application forms in the local courthouse; if they are unavailable, your lawyer can help you write your petition.
Once you have secured a charge reduction, you can petition the court to dismiss the misdemeanor under PEN 1203.4. If you aim to expunge several guilty verdicts, you must obtain a form for each of them. The forms are available in the relevant courthouse or on their website. Also, find out if additional documents are required to attach them to the forms you are presenting. The additional documents accompanying PEN 1203.4 forms include proof of the conclusion of community hours, educational achievements, certificate of probation completion, rehabilitation programs and character reference. These help fortify your petition.
When it comes to supporting documents, ensure they are accurate and complete. Each piece of evidence must reflect your achievements and endeavors.
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Submit your Petition
After completing the expunction petition and gathering all the appropriate supporting documents, the next step is filing the expunction petition with the court clerk where the felony sentencing happened. Submitting the petition initiates the formal expunction process and demonstrates your desire to obtain post-conviction relief. Ensure the documents are correctly filed and the stipulated filing fees have been paid.
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Serving the Relevant Parties
The parties to your petition are the district attorney, probation offer and any other party the expungement will impact. The parties you are serving and the mode of services vary depending on your offense and jurisdiction. However, you must serve all the applicable parties by notifying them that you are seeking a dismissal of a felony sentence.
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Preparing for the Court Hearing
Once all parties have been served and you have paid the filing fee, the court will schedule a hearing. Your legal counsel will assist you in preparing for the proceeding by gathering evidence to support the expunction and preparing responses for questions that could arise in the hearing.
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The Court Hearing
An expunction hearing normally takes ten minutes and is presided over by a judge, not a jury. You do not need to show up for the proceeding, but if you must attend, ensure you arrive on time. The judge will review the facts of the petition for a decision based on:
- Your allegations
- Parole status
- Pending and subsequent convictions
- Your employability
- Community hours and ties
If the court accepts your application, you will obtain a dismissal order from the Superior Court of California. The felony record will not be erased. Instead, it will be marked as dismissed, and this will change how people perceive your past.
When the petition is denied, your attorney should seek answers for the denial and re-submit another motion in six months.
Alternatives to Felony Expunction
Even if the court deems you ineligible for felony expungement or denies your petition, you can still obtain a clean slate from your past mistakes by sealing and destroying your records, acquiring a rehabilitation certificate and obtaining a governor's pardon.
Record sealing means all arrests and police records will be erased. You can have the records sealed if your arrest did not lead to a conviction. A governor's pardon will release you from all disabilities of the sentence.
Find a Skilled Criminal Defense Attorney Near Me
When seeking a felony expunction in Santa Ana, CA, it is critical to partner with an experienced record expungement attorney. At Darwish Law, we will review your case, determine your qualifications and offer bespoke guidance throughout the process. Call us at 714-887-4810 for a no-obligation case evaluation.
