Post Conviction Relief

Different Penal Code sections allow you to seal and destroy your arrest records if you were arrested as an adult.

Penal Code 851.8 allows you to petition the court to seal and destroy your records if you have been arrested but a case was never filed, or if a case was filed, there was no conviction and you were found to be factually innocent.

Penal Code 851.91 allows you to petition the court to seal and destroy your arrest records if you’ve been arrested and even if a case was filed, as long as there was no actual conviction. This includes the following scenarios:

• You were arrested but no charges were filed;
• You were arrested and charged, but the charges were dismissed;
• You completed diversion and the charges were dismissed;
• You completed “DEJ” (deferred entry of judgment) and the charges were dismissed;
• You went to trial and were found not guilty.

After a diversion program, you may be eligible to have your arrest records sealed under the following Penal Code sections: 851.87 after completion of a pre-filing diversion, 1001.9 after diversion program, and 851.90 after drug diversion program.

When most people think of expungement, they think it will “clean their record,” as if nothing ever happened or if it wipes out your criminal record. But that is not what it means. What it does legally is, the finding of guilt (whether it was from a guilty plea, plea of no contest, or guilty verdict) is withdrawn, and the court will dismiss your case. But the case and dismissal will still show up on your record for purposes of any law enforcement or state agency background checks, immigration background checks, and will not relieve you of your duty to register as a sex offender under Penal Code section 290.

So what is the purpose of an expungement? From some employers, landlords, credit agencies, after an expungement, your conviction is “hidden.” So after you obtain your expungement, most private companies are not allowed to see your conviction through your court records. If a private employer asks you whether you’ve been convicted of a criminal case, you can legally answer “no.” Additionally, an employer whether a public agency or private, cannot deny you employment on the basis of a conviction that’s been expunged, sealed or judicially dismissed under Penal Code sections 1203.4, 1203.4a, 1203.425, 1203.45, and 1210.1 (CA Labor Code 432.7).

On September 29, 2022, California Governor approved Senate Bill 731, which grants automatically sealing of arrest and conviction “record relief” for most misdemeanors as long as it has been a year since the date of judgment and probation has been successfully completed. This does not include crimes that require Penal Code section 290 registration. And the Bill is subject to an appropriation in the annual Budget Act, meaning when or how fast any of this will occur, depends on California’s budget.

I went to state prison, can I get an expungement?

The law used to be that if you went to prison, you were not eligible to obtain an expungement. Now, if you were sent to prison before October 1, 2011 (Realignment) and now it’s the type of case where instead of going to state prison you would serve your time in local jail, you may be able to obtain an expungement. Also if your crimes were reclassified as a misdemeanor under Prop 64 (November 8, 2016) for certain marijuana crimes or Prop 47 (November 5, 2014), for simple drug possession or certain theft crimes you may also be eligible for an expungement.

Under Senate Bill 731, as of July 1, 2023, California will automatically seal most felony arrest records that did not result in a conviction (if it’s been at least 3 years or more depending on the charge the arrest was for). This also includes most felony convictions (on or after January 1, 2005) if you successfully completed the terms of probation or parole, and it’s been four years since and you did not pick up any new convictions. This does not include serious or violent felonies nor crimes that require Penal Code section 290 registration. Again all of this is subject to California’s budget or funding.

For those felonies that do not qualify for automatic sealing, not including Penal Code section 290 registration crimes, you maybe eligible to petition the court for record relief.

Gun rights

An expungement does not restore your gun rights if you were convicted of a felony or certain misdemeanors. However, you may have other options such as to vacate your conviction or petition the court to reduce your felony to a misdemeanor pursuant to Penal Code section 17(b).

Courts do not vacate convictions without legal grounds such as, you were not advised of your rights and did not understand the consequences of your plea, or you were not advised of the immigration consequences of your plea.

To see if you can restore your gun rights, call now for free consultation.

Immigration Consequences

If you are not a U.S. Citizen, and were convicted of certain crimes, you later found out that you are no longer eligible for a green card, or you left the United States only to be inadmissible, or you are now being deported due to an old case still haunting you. Many criminal defense attorney are not knowledgeable about both criminal and immigration law. As a result, you are now stuck with the devastating consequences. You may be able to obtain some relief with your immigration consequences by vacating your conviction, asking the judge for a resentencing of your conviction, or by reducing your felony case to a misdemeanor.

Terminate 290 registration

An expungement does not relieve you of your duty to register as a sex offender. However under new changes in the law, you may be eligible to petition the court to terminate your obligation to register. Effective January 1, 2021, SB 384 changes the lifetime 290 registration requirement into three tiers. Depending on what you were convicted for, your criminal history, and risk assessment level, you will be reassigned to one of the following tiers: tier 1 requires a mandatory minimum registration period of 10 years, tier 2 requires 20 years, and tier 3 “risk assessment” requires 20 years, and tier 3 requires lifetime registration. Depending on which category your conviction and criminal history falls under. Call to find out if you may be eligible to request a termination of your duty to register.