Expunging or Clearing Eligible Convictions Involved in the Same Case as Ineligible Convictions

Learn how California expungement law handles multiple convictions from a single case. Can just those convictions that are eligible for expungement or other post conviction relief be cleared or are all of the convictions in a case treated as a whole?

You’re pulled over for running a red light. While the officer is citing you, he notices stolen property in your back seat. You are arrested and charged with an infraction for running the red light, and felony possession of the stolen property in the same case. You plead guilty to both charges, and the judge sentences you to two years of probation. Fast-forward two years: you’ve successfully completed your probation, paid all fines and restitution, and are neither facing any charges nor serving any sentence.

What Can You Do to Get Yourself a Clean Slate?

First of all, you must have been sentenced to probation or jail, not prison. For most convictions, California Penal Code § 1203.4 allows you to petition to withdraw your plea of guilty and have the court dismiss the original accusation against you. After this occurs, you will be released from all penalties and disabilities that resulted from your conviction.1 This means that on most applications, you will be able to honestly state that you were never convicted of that charge.2 Some convictions however, like the infraction in the above example, are ineligible for dismissal.3

So what happens when, in a single case, one of your convictions is eligible for a § 1203.4 dismissal, and one of them is not? A recent case decided by a California Court of Appeal answers this question: From multiple convictions in a single case, you can pick and choose which ones you would like dismissed pursuant to § 1203.4.

People v. Mgebrov

In the recent California Court of Appeal holding, the court found that under § 1203.4, a defendant may successfully petition to have some, but not all, convictions suffered in a given case dismissed, despite the fact that one probationary period was given for all of the convictions.

In 1999, Mgebrov was convicted after jury trial of all counts alleged by the prosecutor. The convictions were for violation of California Penal Code: § 288(c), a felony; § 234.4(a), a felony; and § 148(a), a misdemeanor.

The trial court suspended a three-year, eight-month prison sentence and ordered, among other things, that Mgebrov be placed on probation for a period of five years, plus one year in county jail, with credit for time served.

In 2007, after successfully completing the terms of his probation, Mgebrov moved for dismissal pursuant to § 1203.4(a) on the charges of violation of § 234.4(a) and § 148(a). His motion did not mention the conviction for violation of § 288(c), probably because § 1203.4(b) would not permit the dismissal of that charge.4

The prosecution argued that the trial court could dismiss neither the violation of § 234.4(a) nor § 148(a), because it had imposed a single probationary period for all of the three convictions. The prosecution argued that “the whole point of § 1203.4” was that, upon a defendant’s successful completion of probation, “you dismiss the case. You don’t dismiss the charges. There is nothing in the language that says you can pick and choose among the charges. The case is a case as a whole.”

Mgebrov responded that § 1203.4(a) authorized the court to dismiss individual counts, and that the court should do so for the two counts in his motion. The trial court granted the motion and dismissed the convictions for the violations of § 234.4(a) and § 148(a).

The prosecution appealed and argued that the trial court’s ruling was in error because the plain language, relevant case law, and legislative history of § 1203.4 establish that defendants convicted on multiple counts are not entitled § 1203.4(a) relief at all, if any one of these counts was within the same case as a conviction for a violation ineligible for relief under § 1203.4.

The Court of Appeal found that the plain and commonsense meaning of the text of § 1203.4(a) supports the trial court’s ruling. Further, it found that § 1204.4(a), subject to certain conditions, authorizes courts to act not only “in any case” involving defendants’ completion of, or discharge from, probation, but also “in any other case in which a court, in its discretion and in the interest of justice, determines that a defendant should be granted the relief available under [§ 1203.4(a)].” The Legislature gave the courts considerable flexibility in their application of § 1203.4(a). The inclusion of discretionary authority in § 1203.4(a) also supports the conclusion that that trial court could grant relief for some, but not all counts.

The Court of Appeal found that trial court did not abuse its discretion in allowing Mgebrov to dismiss some, but not all, of his convictions.

What Does This Mean to Me?

Keep in mind that if you were sentenced to state prison, you are ineligible for dismissal under § 1203.4. Also, if you were convicted of a crime excluded from the purview of § 1203.4, you are ineligible for § 1203.4 dismissal of that charge.

If you were discharged from probation, but during the process violated its terms - or you did not complete probation - the judge will have broad discretion in whether to grant your petition in the interest of justice.

The best scenario is that you successfully completed your probation without a violation. If this is the case, dismissal of qualifying convictions under § 1203.4 is your right. The judge has no choice but to grant your petition.

That being said, if you were convicted of multiple charges in a single case, and some but not all of those convictions are eligible for dismissal under § 1203.4(a), you can motion to have the eligible guilty verdicts “set aside”, and the accusatory pleadings dismissed. By doing so, you will be released from all penalties and disabilities resulting from the conviction, and capable of honestly claiming that you were never convicted of that charge.


In summary, contrary to what the prosecution in Mgebrov believed, a petitioner CAN, out of a single case that resulted in multiple convictions, “pick and choose” those convictions that they would like dismissed pursuant to § 1203.4, without having to dismiss all convictions they suffered in the case. The case is certainly not “a case as a whole”, and relief is offense specific.

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1 A termination of probation and dismissal of charges pursuant to Section 1203.4 or a dismissal of charges pursuant to Section 1203.4a of the Penal Code does not affect any revocation or suspension of the privilege of the person convicted to drive a motor vehicle under this chapter. Such person's prior conviction shall be considered a conviction for the purpose of revoking or suspending or otherwise limiting such privilege on the ground of two or more convictions. Cal. Veh. Code § 13555.

2“…The order does not relieve [the petitioner] of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.” Cal. Penal Code 1203.4(a)(1).

3(b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction. Cal. Penal Code § 1203.4.

4 “Subdivision (a) of [Cal. Penal Code 1203.4] does not apply to any violation of subdivision (c) of … Section 288…”. Cal. Penal Code § 1203.4.