Getting Your Conviction “Expunged”

The following information will guide you through the general process of requesting an expungement in California, but it is always a good idea to get a lawyer’s help to make sure you get the best results. There are many expungement clinics across the state that offer free services and advice. For a list of expungement clinics and legal aid organizations that offer expungement services, see PG. 1127.

A NOTE ABOUT COURT FEES: Be aware that the court will charge you fees for filing documents with the court. The amount of the fees will vary by county. If you cannot afford to pay the fees, you can request a fee waiver (meaning you may not have to pay the fees). Ask the clerk how much the fees are and how to request a fee waiver.

I believe I am eligible for a mandatory or discretionary expungement. How do I get one?

In most cases, you will need to file papers in court and ask a judge to expunge your conviction. This process is called filing a Petition for Dismissal, and is basically the same for both mandatory and discretionary expungements, with a few small differences. You will need to file the proper forms in the court where you were convicted, and you may have a hearing in front of a judge (especially if you are requesting a discretionary expungement). For a detailed explanation of each step, see APPENDIX K, on PG. 1018.

IMPORTANT: If you have convictions from multiple cases, you will need to file a separate petition for each case.

!

If my conviction is eligible to be expunged automatically, how does this happen?

Under the law, certain drug convictions will be expunged from your record automatically, without you having to file a petition in court. This happens in the following 2 situations:

    Successful completion of a drug diversion program:[3040]
    In some cases, if you were charged with a drug offense, the judge will suspend your sentence so that you can complete drug treatment instead of going to jail.
    If the judge suspended your sentence and ordered you to do a drug-treatment program (drug diversion), and you successfully completed the program, your records will be automatically expunged.
    NOTE: This remedy is available ONLY if you were given drug diversion by the court AND you successfully completed all court-ordered requirements. If you did NOT complete your requirements, or you were NOT actually given diversion by the court, then the conviction will still be on your record (even if you completed a drug treatment program on your own).
    Minor Marijuana Convictions:[3041]
    If you have a minor marijuana conviction on your record, your record will be cleaned automatically if:
    Your conviction was for “simple possession” of marijuana; AND
    The conviction occurred after January 1, 1976; AND
    The conviction is more than 2 years old.
    After 2 years, all records relating to your arrest and conviction will be destroyed. You will be able to say that you have NO arrests or convictions for this case.
    NOTE: This automatic erasure of minor marijuana convictions is ONLY for convictions related to possession of less than 1 ounce (28.5 grams) of marijuana for personal use. If your conviction was for cultivation, sales, or transportation of marijuana, it will NOT be erased automatically.

NOTE: As of January 1, 2011, simple possession of marijuana is no longer a misdemeanor offense; it is now only an infraction.[3042] Although minor marijuana infractions are supposed to be erased automatically just like other minor marijuana (misdemeanor) convictions, in practice, this doesn’t always happen! If you find that your marijuana infraction has NOT been erased from your record, you will need to contact the court clerk at the court that handled your case and ask him or her to (1) correct your criminal record and (2) destroy all arrest and conviction records from your case.

  1. 3040

    Cal. Penal Code § 1000 et seq. ↑

  2. 3041

    Cal. Health & Safety Code §§ 11361.5, 11361.7. Note: Even if the records are not physically destroyed, they will no longer have any legal effect after 2 years. ↑

  3. 3042

    Cal. Health & Safety Code § 11357(b). ↑

Because I am still on probation and need to be off to have my conviction expunged, is there anything I can do to get off early?

Yes. Under California law, you can ask the judge to release you early from your probation term (called “early discharge”).[3043] Although courts often sentence people to several years on probation (for example, 3-4 years for a misdemeanor), many people are able to complete all of their probation requirements (all of the things the court has ordered them to do—such as attend counseling or pay restitution) long before their time is up. For this reason, courts are often willing to release people early from their probation. For more information about probation terms and conditions, see the PAROLE & PROBATION CHAPTER, on PG. 125.

You can request early release from probation whether you are on informal probation (also called court probation), formal probation, or mandatory supervision. The process is the same for all three.[3044] However. early release from supervision in order to get your conviction expunged ONLY applies if you are on informal or formal PROBATION or Mandatory Supervision. It does NOT apply if you are on parole or PRCS. Although you CAN get off parole and PRCS early, you still CANNOT get your conviction expunged because you will have served a prison sentence for it.

For more information about the difference between formal and informal probation, PRCS, and parole, see the PAROLE & PROBATION CHAPTER, on PG. 125. For more information about getting released early from PRCS, see PG. 967, or see also the PAROLE & PROBATION CHAPTER, on PG. 125.

Need help with your court forms?

Remember, it is recommended that ask a lawyer to help you with your Motion for Early Termination forms. But if you cannot get a lawyer or want to do it on your own, you can find helpful information on the California Courts website:

  1. 3043

    Cal. Penal Code § 1203.3(a) (“The court may at any time when the ends of justice will be served thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held.”). ↑

  2. 3044

    Cal. Penal Code § 1203.3(a). ↑

What is the process for requesting an early release from probation so that i can pursue expungement?

To request early release from probation, you will need to file a Motion for Early Termination of Probation in the court where you were convicted. Because this process requires drafting a formal court pleading with accompanying documents, we recommend that you ask a lawyer for help. Ideally, you should contact the lawyer who represented you when you were sentenced, but any private criminal defense lawyer or Public Defender should be able to help you.

Requesting an early release from probation will involve filing a Motion for Early Termination of Probation. You will have a hearing where you will need to convince the judge that you deserve to be discharged from your probation term early.

For complete details on each step of the process for requesting an early release from probation, see APPENDIX P, on PG. 1026.

You will have the best chance of getting released early from probation early if:

    You have not violated your probation in any way;[3045]
    You have completed the requirements of your probation (finished all classes, paid all restitution[3046] and fines, etc.);[3047] AND
    You are at least halfway through your probationary period (i.e. 1 ½ years of a 3-year probation).[3048]

For more information about probation conditions and requirements, see the PAROLE & PROBATION CHAPTER, on PG. 125. For more information about paying court-ordered restitution and fines, see the COURT-ORDERED DEBT CHAPTER, on PG. 654.

Courts also often consider other positive efforts that you have made in your life, such as:[3049]

    Employment or efforts to find a job;[3050]
    Community service or volunteer work;[3051] and
    Educational pursuits and school accomplishments.[3052]

For this reason, you should make every effort to look for a job, volunteer, or go back to school, and you should emphasize these efforts and accomplishments in your Motion for Early Termination. For more information on finding work and getting a job, see the EMPLOYMENT CHAPTER, on PG. 557. For more information on educational opportunities, see the EDUCATION CHAPTER, on PG. 832.

Finally, the judge may consider:

    The severity of your conviction and conduct;
    Your complete criminal history (i.e., other convictions on your record);
    The prosecutor’s opinion; and
    How much hardship it will cause you to remain on probation (for example, whether being on probation is making it difficult for you to find work, reconnect with your family, apply for loans, or go back to school).[3053]
  1. 3045

    People v. Guillen, 218 Cal. App. 4th 975, 982-83 (2013); People v. Hawley, 228 Cal. App. 3d 247, 249 (Ct. App. 1991). ↑

  2. 3046

    See PG. 1053. In light of the decision in People v. Seymour, Case No. H040560 (Santa Clara County, Super. Ct. No. CC955665), it is unclear whether you can be denied mandatory expungement because of unpaid fines and reimbursements. However, you cannot be denied mandatory expungement because you still owe victim restitution. ↑

  3. 3047

    People v. Hawley, 228 Cal. App. 3d 247 (Ct. App. 1991); People v. Guillen, 218 Cal. App. 4th 975 (2013); People v. Holman, 214 Cal. App. 4th 1447-48 (2013). ↑

  4. 3048

    People v. Hawley, 228 Cal. App. 3d 247 (Ct. App. 1991); People v. Guillen, 218 Cal. App. 4th 975 (2013). See also Early Termination of Probation in California, California Expungement Help, http://californiaexpungementhelp.com/early-termination-of-probation/. ↑

  5. 3049

    Motion for Early Termination of Probation, Avvo, http://www.avvo.com/legal-guides/ugc/terminating-probation. ↑

  6. 3050

    People v. Guillen, 218 Cal. App. 4th 975 (2013); People v. Holman, 214 Cal. App. 4th 1447-48 (2013). ↑

  7. 3051

    People v. Guillen, 218 Cal. App. 4th 975 (2013). ↑

  8. 3052

    People v. Holman, 214 Cal. App. 4th 1447-48 (2013). ↑

  9. 3053

    People v. Guillen, 218 Cal. App. 4th 975 (2013). See also Motion for Early Termination of Probation, Avvo, http://www.avvo.com/legal-guides/ugc/terminating-probation. ↑

Because I am still on Post-Release Community Supervision (PRCS), and need to be off to have my conviction expunged, is there anything I can do to get off early?

Yes. Under the Realignment law, the maximum amount of time that you can be on Post-Release Community Supervision is 3 years (not including any time that your PRCS was revoked or suspended).[3054] However, you can be released early in 2 situations:

    Six months/No violations—If you have been on PRCS for 6 straight months with no violations, you may ask for an early release.[3055] The process for requesting early release from PRCS is very similar to the process for requesting early release from regular probation (see APPENDIX P, on PG. 1026):[3056]
    You will need to write a motion requesting an early release from PRCS, and file it in court in the county where you are on PRCS.[3057] The main difference when you request an early release from PRCS is that the court will ask your probation officer for a probation report and use it to decide whether or not to release you early.[3058] If you have been on PRCS for less than one year, it is entirely up to the judge whether or not to release you early, based on your motion and on what is in your probation report.[3059]
    One year/No violations—If you have been on PRCS continuously for 1 year with no violations, you will automatically be discharged early, within 30 days after your 1-year anniversary.[3060]
    the probation department does NOT discharge you automatically after If this time, you may need to file a motion in court asking the judge to discharge you. Ask a lawyer for help if you are in this situation. For a list of legal aid organizations that may be able to help, see PG. 1127.

Helpful HintA Note About Early Release From Probation & Getting a Conviction Expunged in Court at The Same Time:

Generally, early release from probation and expungement of the underlying conviction go hand in hand. In many counties, these two legal processes will happen at the same court appearance, one after the other. You or your lawyer will file both a Motion for Early Termination of Probation (see APPENDIX P, on PG. 1026) and a Petition for Dismissal (see APPENDIX K, on PG. 1018). If the judge grants your Early Release from Probation motion, he or she will probably grant your Dismissal Petition also (as long as you meet all the other expungement requirements), so you could be off probation AND have your conviction expunged by the end of the day!

  1. 3054

    Cal. Penal Code §§ 1203.2(b), 3455(c), 3456(a)(1). ↑

  2. 3055

    Cal. Penal Code §§ 1203.2(b), 3456(a)(2). ↑

  3. 3056

    Cal. Penal Code § 1203.2(b). ↑

  4. 3057

    Cal. Penal Code §§ 1203.2(b), 3456(a)(2). ↑

  5. 3058

    Cal. Penal Code § 1203.2(b). ↑

  6. 3059

    Cal. Penal Code §§ 1203.2(b) & 3456(a)(2). ↑

  7. 3060

    Cal. Penal Code § 3456(a)(3). ↑