October 15, 2013 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
A new California law, passed as AB 651 and codified as Penal Code Section 1203.41 allows more people convicted of felonies to have their criminal records expunged. Under the new law, those convicted of felonies and sentenced under the provisions of Penal Code Section 1170(h) will be eligible to have their records expunged under most circumstances.
Here’s what you need to know about the new law.
You are only eligible if you did NOT go to state prison on the charge you wish to expunge.
If you actually went to and served time an actual state prison on the charge you want to expunge, the new law will not help you. The new law only applies to those sentenced to “county prison” sentences under Penal Code 1170(h). So if you were given a state prison sentence but served your time in a local county facility, you pass the initial threshold of eligibility for expungement.
If you were given a “split sentence” you must wait one year after your sentence is completed to apply for expungement.
If the judge sentenced your or a loved one to a sentence which involved serving an 1170(h) sentence in local custody followed by a period of supervision by a county probation officer, you are not eligible for expungement until one year after your community supervision terminates.
If you were not required to serve a term of community supervision, you are not eligible for expungement until two years after your sentence is completed.
If you served all your time in a local facility and were not required to report to a probation officer or any other form of community supervision after your release, you must wait two years until after your release in order to apply for expungement.
You must not be servicing a sentence or on probation for any other case when you apply for expungement on the existing charge.
Just as the case with other existing laws covering expungement, you cannot be serving a sentence or on probation for any other offense when applying for probation. You must wait until you are off probation or done serving a sentence on any other case. Also, if you have pending cases that have not yet resolved, your petition for expungement will be denied.
If your case was a wobbler, you can still petition the court for a reduction to a misdemeanor.
Some 1170(h) crimes, such as possession of a controlled substance, are wobblers (crimes that can be charged as either felonies or misdemeanors). Just like all laws dealing with expungement, your lawyer can petition the court to not only dismiss your case but also reduce the charge to a misdemeanor. However, the decision to grant the misdemeanor reduction before dismissal is in the discretion of the court and not automatically granted.
And Remember: “Expungement” does not mean that your conviction is sealed.
Your conviction will not be “sealed”, that only applies to certain juvenile crimes. Your criminal record will show that you were convicted, that you served your sentence, and that your charge was subsequently dismissed. Beware of people who tell you that your criminal record is being “sealed” , that is simply not true.
If you or a loved one are eligible for expungement or have any questions about the process, do not hesitate to call The Law Offices of Jerod Gunsberg at (323) 633-3423 or via this confidential email contact form.