Can an old conviction be cleared from your record?
Often, a court can dismiss it. An expungement in California does not erase a case, but it can change how a conviction affects your life.
Old cases can keep coming up on job and housing applications. Below is what an expungement in California is, who can ask for one, what it does and what it does not do.
What does “expungement” mean in California?
“Expungement” is a common term, not the one used in the statute. In California, it usually means a dismissal under Penal Code 1203.4.
Under that section, the court lets you withdraw your guilty or no contest plea and enter a plea of not guilty, or sets aside a guilty verdict. It then dismisses the case. After that, you are released from most penalties and disabilities that came from the conviction, with important exceptions covered below.
A dismissal is not the same as erasing the record. The conviction can still be used against you if you are charged with a new offense later.
Who can ask for a dismissal under Penal Code 1203.4?
Section 1203.4 is for people who were granted probation. You can ask for relief after probation ends if you:
- Fulfilled the conditions of probation for the entire period
- Were discharged before the end of probation
- Or, in other cases, the court decides relief should be granted “in the interest of justice”
At the time you ask, you cannot be serving a sentence, be on probation or be charged with another offense. Probation is a period of court supervision in place of some or all jail time. If you are not sure whether you had probation, the court file will show it.
You do not have to be perfect on probation for the court to consider relief. Section 1203.4 gives the judge discretion to grant it in the interest of justice.
What if you were never granted probation?
A separate section may apply. Penal Code 1203.4a covers infractions and misdemeanor convictions where probation was not granted.
Under that section, relief can be available once one year has passed since judgment. You also must have fully complied with the sentence and lived an honest and upright life since then. Relief also requires that you are not serving a sentence for another offense or facing a new criminal charge.
You may meet the basic terms but not every requirement. Even then, Section 1203.4a(b) lets a court grant relief “in the interest of justice.” That gives the judge room to look at your situation as a whole.
Section 1203.4a does not apply to a few listed offenses, such as a misdemeanor under Penal Code 288(c). The same firearm and protective order limits described below also apply under this section.
Can a felony be reduced to a misdemeanor first?
Sometimes it can. Some California crimes are “wobblers.” A wobbler is an offense that can be punished as either a felony or a misdemeanor.
Under Penal Code 17(b)(3), a court that granted probation for a wobbler can later declare the offense a misdemeanor on the defendant’s request. Our post on felony vs misdemeanor charges in California explains wobblers in more detail.
Which convictions cannot be dismissed?
Section 1203.4(b) lists exceptions. Relief does not apply to certain sex offenses involving minors, including convictions under Penal Code 286(c), 287(c), 288, 288.5 and 289(j). It also excludes child pornography offenses under Penal Code 311.1, 311.2, 311.3 and 311.11.
A felony conviction under Penal Code 261.5(d) is excluded too, as are infractions and misdemeanors under Vehicle Code 42002.1. Infractions may instead qualify under Section 1203.4a.
What does expungement in California do for you?
A dismissal can help in daily life. Under Labor Code 432.7, most employers may not ask about a conviction dismissed under Section 1203.4 or 1203.4a or use it in hiring decisions.
That rule has exceptions. Some jobs, such as peace officer positions and roles where state or federal law requires a background check, are not covered.
What does an expungement not do?
Penal Code 1203.4 is clear about its limits. A dismissal:
- Does not relieve you of the duty to disclose the conviction on an application for public office
- Does not relieve you of the duty to disclose it on an application for a state or local license, such as a professional license
- Does not let you own or possess a firearm if you were otherwise barred
- Does not end an unexpired criminal protective order issued in the case
- Does not stop a prosecutor from using the prior conviction in a later case
- Does not undo a DMV license suspension or revocation tied to the conviction (Vehicle Code 13555)
The disclosure duty also applies to applications for contracts with the California State Lottery Commission. If you hold or plan to apply for a professional license, our professional license defense page has more on that process.
Does unpaid restitution block a dismissal?
Not on its own. Restitution is money a court orders a person to pay a victim for losses caused by a crime.
Under Penal Code 1203.4(c)(3), an unpaid restitution order or restitution fine is not grounds for denying relief. A dismissal does not wipe out what is owed.
How does the process work in Sacramento?
A petition for dismissal is filed with the court where the case was decided. For Sacramento County cases, that is the Sacramento County Superior Court.
Penal Code 1203.4(d) requires that the prosecuting attorney get 15 days’ notice of the petition. The prosecutor can object, and the judge then decides whether to grant relief.
Before filing, it helps to gather:
- The case number and date of conviction
- Proof that probation was completed or ended early
- Records showing fines, classes or programs that were completed
- Any letters or records that show what you have done since the case
You can learn more about how a case moves through the courts on our criminal process page.
Do you have to appear in court yourself?
Not always. Both Section 1203.4 and Section 1203.4a let the person make the application and change of plea in person or through an attorney.
For infractions under Section 1203.4a, the request is made by written declaration unless there is a compelling need for a hearing. The prosecutor still must receive at least 15 days’ notice.
What if the prosecutor objects?
An objection does not end the request. The judge still decides and may look at the record, the time that has passed and what you have done since the case.
Proof of steady work, school, treatment or community service can give the court a fuller picture of who you are today.
What questions should you ask about clearing a record?
The rules vary depending on the type of conviction, whether probation was granted and whether there were other cases. A short list of questions can help you sort out which rules apply:
- Does my conviction qualify under Section 1203.4 or 1203.4a?
- Was my offense a wobbler that could be reduced?
- Am I on probation or facing a new charge right now?
- Will a dismissal change what I must disclose for a license?
- Which court records should I gather?
Facing a new criminal charge in Sacramento?
The Law Office of Richard T. Dudek handles criminal cases in state and federal courts in Sacramento and the greater Sacramento area. Our team has never forgotten that any conviction is likely to change someone’s life.
If you or someone you love has been arrested, you don’t have to figure out the next step alone. Call (916) 848-6508 for a free consultation.
The information here is general information about California criminal law, not legal advice. Record clearance rules can change, and each case depends on its own record. Reading it does not create an attorney-client relationship.