Because I have a felony conviction that was sentenced to county jail under Realignment instead of state prison, can i get it expunged?

Maybe. If you were convicted of a felony and sentenced to county jail instead of state prison (called a “County Jail Felony”) under California’s Realignment Act,[3017] you may be eligible for expungement under California’s newest expungement law.[3018] This law is specifically intended for people who were sentenced under Realignment.

To be eligible for expungement of your Realignment felony, you must:

    Have served your entire sentence in county jail—NOT state prison (unless you meet the criteria for 1203.42, described below);
    Have completed your entire sentence—including any probation or community supervision;
    Paid all of your fines and fees; AND
    Not have any new charges pending, not be serving a sentence on a new case, and not be on probation for another case.

NEW LAW: If you served a prison term before 2011 for a felony that now falls under the Realignment Act, you may be eligible for dismissal under a new law. Penal Code section 1203.42, effective January 1, 2018, applies to you if you would have been sentenced to a County Jail Felony if Realignment had existed at the time of your conviction.[3019] The dismissal will be granted at the discretion of the court “in the interest of justice.” As with other dismissal remedies, in order to be eligible, you must not have any new charges pending, must not be serving a sentence on a new case, and must not be on probation for another case. In addition, at least two years must have passed since you finished your prison sentence.[3020] For more information on whether you qualify, call Root & Rebound’s Reentry Legal Hotline.

What is a “SPLIT sentence” versus a “STRAIGHT sentence”?

Under California’s Realignment Act, people who are sentenced to county jail instead of prison for felony convictions, can be sentenced in two ways:

    Straight sentence—a person is sentenced to serve their entire sentence in custody. When they are released, they have completed their entire sentence and are not required to serve any term of supervision.Split sentence—a person is sentenced to spend a portion of their time in custody and the remainder under community supervision (mandatory supervision).

Additionally, BEFORE you can get your conviction expunged, you must wait a certain amount of time after completing your sentence:

    If you had a split sentence, you must wait 1 year after the completion of your sentence.
    If you had a straight sentence, you must wait 2 years after the completion of your sentence.[3021]

Finally, expungement under this statute is entirely discretionary, meaning it is up to the judge to decide whether or not your conviction should be expunged. For this reason, you should be prepared to bring any evidence you can to show the judge that you deserve to have your conviction expunged. (For more information on discretionary expungements, see PG. 963.)

IMPORTANT: What an expungement will NOT do. Even if you have your Realignment “AB 109” felony expunged:

!

    It will still count as a “prior” conviction in a future criminal case;[3022]You still have to report it as a conviction to occupational licensing agencies and on applications for job positions in a government office;[3023] It does NOT restore your gun rights, so you can still be charged under “felon in possession” criminal laws;[3024] It does NOT restore your right to hold a job in public (government) office (if you lost this right due to your conviction).[3025]
  1. 3017

    Cal. Penal Code § 1170(h).

  2. 3018

    Cal. Penal Code § 1203.41.

  3. 3019

    Assembly Bill No. 1115, Chapter 207, “Legislative Counsel’s Digest” (Sept. 2, 2017), available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1115.

  4. 3020

    Cal. Penal Code §§ 1203.42.

  5. 3021

    Cal. Penal Code § 1203.41(a)(2).

  6. 3022

    Cal. Penal Code § 1203.41(b)(1).

  7. 3023

    Cal. Penal Code § 1203.41(b)(2). You must also report the conviction on applications for contracting with the California State Lottery Commission.

  8. 3024

    Cal. Penal Code § 1203.41(b)(3).

  9. 3025

    Cal. Penal Code § 1203.41(b)(4).