California Law & Benefits of Expungement. By Darren Chaker, What is 1203.4 Relief?

Although the past cannot be completely erased, some relief from the disadvantage s of a criminal conviction is available. Penal Code Section 1203.4 permits defen dants, previously convicted of a probation or have been discharged early, to hav e their case dismissed and a plea of 'not guilty' replacing a guilty plea/verdic t. If the petition is granted, the person must be released from all disabilities re sulting from the conviction. Perhaps the most significant benefit applies to fut ure applications for employment in the private sector. By regulation, a private employer cannot ask a job applicant about any misdemeanor dismissed under Penal Code 1203.4. (Cal.Code Regs 7287.4(d). Penal Code Section 1203.4a provides simil ar relief to persons convicted of a felony or misdemeanor, who have successfully completed their sentence. Automatic Entitlement If the person successfully completed probation (or had his or her probation term inated early), and is not then serving a sentence, on probation, or charged with any new offense, relief must be granted. People v. Hawley (1991) 228 Cal.App.3d 247, 249. But, relief need not be granted when probation expired without succes sful completion. People v. Covington (2000) 82 Cal.App.4th 1263 (failure to make full restitution). Persons convicted of a felony and sentenced to prison: If you were convicted of a felony and sentenced to prison (either initially or after having had your prob ation violated), you are not eligible for relief under Penal Code 1203.4. Many sex related offenses: Penal Code 1203.4 relief is not available for violati ons of Penal Code 286(c), 288, 288a(c), 288.5, 289(j), or any felony conviction for a violation of 261.5(d). The Bad News A dismissed charge may still be pled and proved just like any other prior convic tion in a subsequent prosecution. This means a prior DUI conviction will remain available for ten years to enhance the penalty for any subsequent DUI offense. S ee People v. Diaz (1996) 41 Cal.App.4th 1424 (dismissed charge used as strike al so under Three Strikes law). A person who secures Penal Code 1203.4 relief must still disclose the conviction in response to any direct question contained in any questionnaire or applicatio n for public office or licensure by any state or local agency, or for contractin g with the state lottery. Dismissal does not make the conviction records unavailable to the public. People v. Field (1995) 31 Cal.App.4th 1778, 1787. The Very Good News Expunged conviction (dismissal) is inadmissible as impeaching evidence. People v . Mackey (App. 2 Dist. 1922) 58 Cal.App. 123, 208 P. 135. "Penalties and disabil ities" in Section 1203.4 providing that defendant who fulfills conditions of pro bation shall thereafter be released from all penalties and disabilities resultin g from the offense or crime of which he was convicted has reference to criminal penalties and disabilities or to matters of a criminal nature. Copeland v. Depar tment of Alcoholic Beverage Control (App. 2 Dist. 1966) 50 Cal.Rptr. 452, 241 Ca l.App.2d 18 People v. Field (1995) 31 Cal.App.4th 1778 in which expunged felony convictions were held to be inadmissible for purposes of impeaching witnesses. ( Id. at p. 1787.) See also, Cal. Const., art. I, § 28, subd. (f) (prior felonies usa ble for impeachment) do not have any effect because once a conviction has been e xpunged, it no longer is a viable conviction for impeachment purposes.

By virtue of expungement, there no longer is a prior conviction. People v. Field (1995, Cal App 4th Dist) 31 Cal App 4th 1778, 37 Cal Rptr 2d 803, 1995 Cal App LEXIS 87, review denied (1995, Cal) 1995 Cal LEXIS 3255.