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Attorney Matthew G. Kaestner
Long Beach's Criminal Law Specialist
One World Trade Center
Suite 800
Long Beach, California 90831
Phone: 562-437-0200
Fax: 562-983-8041
Email: [email protected]

Long Beach’s Criminal Law Specialist 562-437-0200

"EXPUNGEMENT" OF CRIMINAL CONVICTIONS

If you've been arrested or convicted in the past, there are many ways to minimize and, under certain circumstances, erase, the legal effect of that arrest or conviction. Long Beach criminal attorney, Matthew Kaestner, has erased convictions for murder, assault, criminal threats and other crimes. Attorney Kaestner has obtained reductions and dismissals of felony and misdemeanor offenses. He has obtained judicial findings of factual innocence for his clients. He is an expert in the field. Contact Mr. Kaestner directly at (562) 437-0200. Mr. Kaestner has over 30 years as a criminal law lawyer in Long Beach and Southern California.

New laws that took effect in January of 2017 have expanded protections to persons who have taken measures to “expunge” their criminal record that were first enacted in 2014.  Labor Code section 432.7 has been expanded to cover juvenile matters and now prohibits most public and private employers from inquiring about juvenile matters and adult criminal arrests or convictions that were “expunged.”

What follows is a brief overview, prepared by Long Beach criminal law specialist Matthew Kaestner regarding the various avenues of relief for persons who have been convicted of criminal law offenses.

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IS THERE AN "EXPUNGEMENT" IN CALIFORNIA?

The term "expungement" is actually an inaccurate word to describe any procedure to legally remove an arrest or conviction from government records in the State of California. Also, with anything in life, it is impossible to completely erase the past. With the invention of the internet, and the wide availability of background checks, it is difficult, if not impossible to erase all records that show that someone has been prosecuted, as an adult, for a violation of a criminal law.

However, there are many ways to minimize if not completely eliminate the legal effect of a conviction. The first and most complete way to eliminate and erase even arrest records for an offense is to obtain a judicial finding of factual innocence.

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WHAT IS A JUDICIAL FINDING OF FACTUAL INNOCENCE?

A judicial finding of factual innocence is exactly what the name implies. It is a finding by a court that the arrested or charged person was truly innocent. If a court issues a "certificate" of factual innocence, all records of the arrest and conviction, even those with the California Department of Justice, must be sealed. Three years after the sealing, the records must be destroyed. The arrest is deemed never to have occurred.

A judicial finding of factual innocence is potentially available to:

Persons who have been arrested only;
Persons who were arrested but had no charges filed;
Persons who were arrested and charged but had their case dismissed; or
Persons who were charged and were acquitted at a court or jury trial.

A finding of factual innocence is available pursuant to the procedures outlined in Penal Code section 851.8. A person arrested or prosecuted has two years to bring a petition for a finding of factual innocence after the arrest or conviction, whichever came later. A court may, for good cause, allow a petition after the expiration of the two years.

If no charges were brought after an arrest, the arrested party needs to petition the arresting agency and the District Attorney. If they deny the petition, the arrested party can file a petition with the court for the jurisdiction of arrest. If the arrested person was charged but the case is dismissed or the person was acquitted, the court can grant a finding of factual innocence at the time of the dismissal if the prosecutor agrees. Absent the prosecution's agreement, a petition can be filed with the court.

Also, as of 2017, it is now a misdemeanor for a prospective public or private employer to inquire about a juvenile matter with 2 exceptions.   First, a law enforcement agency may inquire about juvenile matters .  Second,  a public health employer may inquire about certain juvenile matters that are not older than five years or that have not yet been sealed.  (Read Labor Code section 432.7)

A court cannot deny a petition for a finding of factual innocence without a hearing. At the hearing the person seeking the finding has a very high burden to prove that "no person of ordinary care and prudence would believe...that the person arrested or acquitted is guilty." The denial by the trial court of finding of factual innocence may be overturned on appeal if denied without good cause. (People v. Laiwala (2006) 1434 CA4th 1065.)

Although a finding of factual innocence is not easy to obtain, it allows a person who was arrested or charged, but not convicted, to have all records of the arrest or prosecution erased. It is the closest thing to an "expungement" as one can get in California.

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WHAT IS A CERTIFICATE OF REHABILITATION AND A PARDON?

A pardon is an order by the Governor of the State of California, or the President of the United States, that completely sets aside a conviction for all legal purposes. There are two types of Governor's pardons, a "direct" pardon (Penal Code sections 4800-4813) and a pardon based on a certificate of rehabilitation. (Penal Code sections 4852.01-4852.21.)

A direct pardon is a pardon made by the Governor after an application made directly to the Governor's office. An indirect pardon is a pardon granted by the Governor after a Superior Court issues a certificate of rehabilitation. An indirect pardon is not automatic after certificate of rehabilitation.

The procedures for obtaining a certificate of rehabilitaion and pardon can be a little complicated. The Office of the Governor's pamphlet regarding the process to obtain a certificate of rehabilitation and a pardon can be found at:
gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf

San Diego County has an explanatory page and forms that can be filled out in order to apply for a certicate of rehabilitation at: https://www.sdcourt.ca.gov/pls/portal/docs/PAGE/SDCOURT/GENERALINFORMATION/FORMS/CRIMINALFORMS/PKT016.PDF

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WHAT ABOUT RECORDS OF JUVENILE ARRESTS AND CONVICTIONS?

Virtually all matters that occur in juvenile courts are confidential and information about juvenile arrests and convictions are not generally public records as are adult arrests and convictions. In addition, the Welfare and Institutions Code (WIC) section 781 allows for the sealing of juvenile court records by persons who complete juvenile probation and are 18 or older or when five years has past, whichever comes first. A form can be filed to obtain the sealing, Form JV-590. This form is available at: www.courts.ca.gov/forms.htm

However, certain serious felony offenses listed in WIC section 707(b), such as robbery, and assault with a firearm, may not be sealed if the minor was 14 years old or older at the time of the offense. Also, if the minor was 16 or 17 at the time of the commission of the WIC 707(b) offense, the juvenile conviction can be used as a strike once the minor turns 18.

For most juvenile convictions, once the record is sealed, the proceedings are deemed "never to have occurred and the person may properly reply accordingly to any inquiry." In other words, after sealing a juvenile record, it is legally proper to deny any arrest or juvenile conviction. [WIC 781(a)] For more information click to our juvenile page.

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HOW TO OBTAIN A DISMISSAL OF A MISDEMEANOR OR FELONY AFTER COMPLETION OF PROBATION

Almost any time a person convicted of a misdemeanor or felony successfully completes probation, they are eligible to apply to the court to withdraw their plea and obtain a dismissal. This relief is available to persons who completed probation without a violation (and to persons who violated and had probation reinstated), are not on probation and don't have charges pending. This relief is available under Penal Code section 1203.4. There are some sex crimes and traffic crimes where relief may not be granted. [Penal Code section 1203.4(b).]

When the procedure to obtain relief is followed correctly, a criminal conviction is "dismissed." An extra entry is made on the court record indicating "dismissed." The 1203.4 dismissal releases the person "from all penalties and disabilities resulting from the offense of which he or she has been convicted" with numerous exceptions.

With regard to felony “wobbler” convictions, that aren't reduced to misdemeanors before obtaining the dismissal (see reduction below), a 1203.4 plea withdrawal and dismissal has a more limited legal effect. Felonies dismissed under 1203.4 can still be used as priors in future prosecutions and do not effect the life time ban on possession of a firearm.  Also both felony and misdemeanor convictions dismissed under 1203.4 must still be disclosed on an application for public office, a state license, or when contracting with the state lottery.  And a 1203.4 dismissal of a felony or misdemeanor sex crime does not remove the registration requirement unless, in some limited instances, a certificate of rehabilitation is obtained. (See Certificates of Rehabilitation above.)

Nonetheless, a prior conviction dismissed under  P.C. 1203.4, while having these limitations, cannot be inquired into by most private or public employers when making decisions about hiring, promotion, or termination.   Health care providers may inquire about arrests or convictions for drug or sex cases.  Employers who are prohibited by state or federal law from hiring persons who have been convicted may also inquire.  Law enforcement agencies may freely inquire.  (Read Labor Code section 432.7)

As of 2014, persons who served re-alignment county jail sentences on felonies can now petition to have their plea withdrawn and case dismissed two years after finishing their jail sentence or one year after completing a “split” sentence involving jail and supervision.

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REDUCTION OF A FELONY CONVICTION TO A MISDEMEANOR

Any person who was convicted of a felony offense that was a "wobbler," meaning that the offense was chargeable as either a felony or a misdemeanor, and who was not sentenced to prison with the execution of sentence suspended, and who successfully completed probation, may apply to have the offense reduced to a misdemeanor.

Wobblers include possession of methamphetamine, grand theft auto, receiving stolen property, or any other offense that is punishable by: "imprisonment in the county jail not exceeding one year, or in the state prison."

It is vitally important that persons who complete probation for a felony "wobbler" obtain a reduction of the offense to a misdemeanor, and then obtain a misdemeanor dismissal under Penal Code section 1203.4. (see above.)

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MISCELLANEOUS PROCEDURES TO OBTAIN THE DISMISSAL OF CRIMINAL LAW CONVICTIONS

There are actually quite a number of other ways to obtain a dismissal of a criminal law case. Felony and misdemeanor cases involving the possession of drugs can oftentimes be dismissed. [For more information go to the page in this site regarding "Drug Crimes."

Various post conviction writs (special written legal motions) can be filed to obtain relief from a criminal law conviction on an old case when the entire appellate process has been completed. For persons who are still in custody or on probation or parole for a criminal conviction, a writ of habeas corpus can be used to reverse a conviction. The main grounds upon which to obtain a writ of habeas corpus are:

That the government introduced false testimony or evidence to obtain the conviction;
Ineffective assistance of counsel or "IAC." IAC can happen if the trial counsel did not properly investigate the case, or failed to call logical witnesses at the trial;
The prosecution withheld helpful evidence of innocence or failed to turn over information that could have undermined the prosecution's case; and
There is newly discovered evidence of innocence. This evidence can include a witness who recants previous testimony, DNA evidence that proves innocence, or any other evidence of innocence that substantially undermines confidence in the conviction.

Getting a trial or appellate court to grant a writ of habeas corpus is always a long shot and can require years of work by a diligent attorney to yield a successful result. Long Beach criminal attorney Matthew Kaestner worked for three years to obtain freedom for his client Juan Herrera who was wrongfully convicted of murder. [Read more.]

It probably goes without saying that the best way to avoid the consequences of a criminal conviction, is to avoid getting convicted in the first place. Long Beach Criminal Law attorney Matthew Kaestner is a criminal law specialist with 24 years of experience handling criminal cases. If you have a criminal case pending, or have a conviction in the past that you have questions about call attorney Kaestner directly at (562) 437-0200.

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For more information about "cleaning" a criminal record, the California Courts, have a series of web pages devoted to the subject. (Go to "Cleaning Your Record")

Long Beach’s Criminal Law Specialist Matthew G. Kaestner is a criminal defense attorney with over 30 years experience in all types of criminal law cases, including drug offenses, murder charges, white collar offenses, all felonies, DUI, domestic offenses, battery, resisting arrest and other serious criminal law matters.

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