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If you or a loved one is in need of an expungement and has served a prison sentence give us a call.  If you have questions after reading this article give us a call and we can help you out.  Our phone number is 559-441-`1418.  

 

Many times people hav come into my office and asked me if they can get an expungement after having served a prison sentence.  The answer to that question used to be a simple NO. However, there has been changes in the law including the law of expungement.  

 

The knee jerk response from me and other Attorneys was also no, expungements were not available to people that had served a prison sentence.  

 

WHAT HAS CHANGED IN THE LAW?

1203.42 has changed the law.  Convictions reclassified as Misdemeanors under prop 64 and prop 47, provided certain specific requirements are met as described below and the Judge finds it is in the best interest of justice then then expungement is still an option. 

 

WHAT REQUIREMENTS FOR A 1203.42 EXPUNGEMENT?

Under the the new (2018) law Penal Code 1203.42 one may seek relief under Penal Code 1203.4 (Expungement) if the conviction at issue is now punishable bya  county jail sentence.  Ths means that even if somoene served time in  state prison for a  felony conviction, that person can seek expungement fi the underlying conviction is now a misdemeanor.  

There are some other requirements under 1203.42 First, at least two years must pass after the applicant finishes hir or her setence probation or post release community superivion.  

Also, the covviction cannot be for a serious or violence felony, or certain offesnes involving children.  As serious felony is one listed under penal code 1192.7 (c) including any felony accomplished by use of a firearm.  A violent Felony is any crime listed under Penal Code 667.5 (c)The sex offenses at issue include, but are not limited to Penal Code 261.5 (d) statutory rape when defendant is now over 21 and the victim is under 16) 288 lewd act with a child) 288 c oral copulation with a child and 286 sodomy with a child.  

Third, the applicant may not be currently charged with a crime, on probation or supervised release or serving a sentence for a crime.  It should be noted that if somoene has been realeased on Parole, parole is reserved for those convicted of serious or violent felonies.  

Under Penal Code 1203.4 the court must allow a qualified petitioner with a qualified offense to withdraw their plea of guilty or no contest and then dismiss the complaint, relief under 12003.42 is discretionary.  That means the Judge can still deny the expungement.  Even if the person meets all of the requirements then the Judge can still say no usually they will state a reason but they do not have to and after a certain amount of time the person can reaply under this statute.  

 

WHAT HAPPENS IF THE JUDGE DOES GRANT THE RELIEF UNDER PENAL CODE 1203.42?

If the Judge does grant the "expungement" the effect is that you can legally answer no on private applications to the question have you ever been convicted of an offense.  As long as the employer is not a government agency or government sub contractor.  One must still disclose the conviction in applying for any state licens agency, or if seeking to opeate a state lottery or ru for public office.  

It is important to note that under 1203.42 the conviction may still be considered for jobe involving the suse of a firearm ie becoming a police officer and it can still be used to deny admission as a citzen if the person is not a citzen of the united states.  If you have further questions give usa call 559441-1418. 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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