What are the different types of expungement and what do they require?

There are 2 types of expungements: Mandatory and Discretionary.

    Mandatory expungement is automatic, meaning the judge MUST expunge your conviction if you meet all the requirements.
    Discretionary expungement means that it is up to the judge whether or not you deserve to have your conviction expunged. You still have to meet certain requirements, but you do NOT have to meet all of the requirements like you do for mandatory dismissal.

MANDATORY EXPUNGEMENT

If your conviction is eligible for expungement AND you meet certain additional requirements, the law says that the judge MUST dismiss your conviction. There are two situations where you can get MANDATORY expungement of your conviction:[3026]

SITUATION #1 — If you received PROBATION:

Your conviction MUST be expunged if ALL 4 of the following apply to you:[3027]

    (1) Your conviction was for a misdemeanor or felony “wobbler”;
    (2) You received probation as part of your sentence, and:
    You successfully completed probation OR
    You received early release from probation;[3028]
    (3) You are NOT currently serving another sentence or under supervision for another offense; AND
    (4) You are NOT currently charged with another offense.

IMPORTANT LEGAL UPDATE: Please note—it used to be unclear whether or not you were required to pay off victim restitution to get a mandatory expungement of an eligible conviction, but a recent California court case decided that a person who has the right to a mandatory expungement of a conviction under California Penal Code § 1203.4 CANNOT be denied the dismissal just because he or she still owes victim restitution.[3029] This means that if you owe victim restitution, you would still have the RIGHT to a mandatory dismissal of the conviction if all of the other above requirements are met.

!

SITUATION #2 — If you did NOT receive PROBATION:

Your conviction MUST be expunged if ALL of the following apply to you:[3030]

    Your conviction was for an infraction or misdemeanor; AND
    You did NOT receive probation as part of your sentence, AND
    You have fully complied with the requirements of your sentence (including paying fines and reimbursements that were part of your sentence[3031]); AND
    One year has passed since the date of your conviction; AND
    You are NOT currently serving another sentence or under supervision for another offense; AND
    You are NOT currently charged with another offense.

If you meet the requirements for either of the two situations above, your conviction should be eligible for MANDATORY expungement.

DISCRETIONARY EXPUNGEMENT

If your conviction is eligible for expungement, but you do NOT meet the requirements for a mandatory expungement, you may still get a DISCRETIONARY expungement for your conviction—but it will be up to the judge to decide whether or not to grant it.

The judge MAY expunge your conviction if your meet these 3 requirements:[3032]

(1) You were convicted of an infraction, misdemeanor, or felony “wobbler”;

AND

(2) (2a or 2b or 2c must apply…)

(2a) You received probation, AND you did NOT complete all the conditions of probation (for example, if you violated conditions of your probation—though just not paying victim’s restitution isn’t enough to deny a mandatory expungement anymore[3033]); AND you did NOT get an early release from probation;[3034] OR

(2b) You received probation for a conviction of any offense listed in California Vehicle Code sections 12810(a) to (e) (certain serious traffic violations)[3035]; OR

(2c) You did NOT receive probation AND you did NOT complete all the requirements of your sentence; AND 1 year has passed since your conviction.[3036]

AND

(3) You are NOT currently charged with, under supervision for, or serving a sentence for any other offense.

IMPORTANT: Restitution Payments & Discretionary Expungement.

!

Although the judge is allowed to grant you a discretionary expungement if you still owe restitution, fines, or other payments ordered by the court,[3037] it can be much more difficult to get your conviction expunged if you have not made these payments (especially victim restitution). The judge will probably want to see that at least you have been making efforts to pay your debts, even if you still owe money. For more information on paying restitution, fines, and other fees, see the COURT-ORDERED DEBT CHAPTER, beginning on PG. 654. It’s also good to contact lawyer to get advice on your individual case, since restitution is different for every case. See the list of legal aid providers to find a lawyer who may be able to help you on PG. 1127.

In order to grant a discretionary dismissal, the judge must find that is “in the interests of justice” to do so.[3038] This means you will need to show a very convincing reason why you deserve to have your conviction expunged. You should give the court as much helpful information as possible (including evidence of rehabilitation) to persuade the judge to decide in your favor!

AUTOMATIC “Expungements”

In a handful of limited cases involving certain types of drug convictions, your record will be cleared automatically, and you will not have to go through any special court process to get an expungement. This happens in 2 situations:

    If the judge suspended your sentence (called deferred entry of judgment) and ordered you to do a drug-treatment program (drug diversion) instead, and you successfully completed the program.
    If you have a minor marijuana conviction for simple possession, and your conviction is more than 2 years old.

For more information about automatically cleaning your record in these 2 situations, see PG. 965.

  1. 3026

    Cal. Penal Code § 1203.4(a) (“In any case in which the defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendre and enter a plea of not guilty.”). ↑

  2. 3027

    Cal. Penal Code § 1203.4(a). ↑

  3. 3028

    People v. Butler, 105 Cal. App. 3d 585 (Ct. App. 1980) (defendant discharged early from probation was entitled to mandatory dismissal of conviction, despite owing unpaid restitution). ↑

  4. 3029

    See People v. Seymour, Case No. H040560 (Santa Clara County, Super. Ct. No. CC955665). ↑

  5. 3030

    Cal. Penal Code § 1203.4(a). ↑

  6. 3031

    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. ↑

  7. 3032

    Cal. Penal Code § 1203.4(a); see Dealing With Criminal Records in Alameda County Self-Help Manual, East Bay Community Law Center (2005), http://ebclc.org/documents/AlamedaCountyCriminalRecords-SelfHelpManual-SP2005.pdf. ↑

  8. 3033

    See People v. Seymour, Case No. H040560 (Santa Clara County, Super. Ct. No. CC955665). ↑

  9. 3034

    Cal. Penal Code § 1203.4(a). ↑

  10. 3035

    Cal. Penal Code § 1203.4(c)(2). ↑

  11. 3036

    Cal. Penal Code § 1203.4a(b). ↑

  12. 3037

    See, e.g., People v. Holman, 214 Cal. App. 4th 1438 (2013); People v. Guillen, 218 Cal. App. 4th 975 (2013). ↑

  13. 3038

    Cal. Penal Code § 1203.4(a); see also People v. McLernon, 174 Cal. App. 4th 569 (2009). ↑