California Appellate Court Upholds Expungement of Attempted Sex Offense recently defended an appeal of a granted California expungement, and the Court of Appeal has unanimously affirmed the order granting the expungement motion. The case involved whether a conviction for an attempted violation of section 288(a) could be expunged under California Penal Code section 1203.4. The Sixth District Court of Appeal ruled that an attempted violation is not considered “any violation” of the sex offense exceptions in section 1203.4(b), and the appellate court affirmed the trial court’s order granting the expungement.

Attorney Jennifer Strange defends appeal of California expungement case

“Winning appeals is important because it shows our clients that we will continue to fight if the district court judge makes the wrong ruling, and it creates case law that protects the ability for former offenders to have their records expunged,” said attorney Mathew Higbee.

In 2008, the defendant pleaded nolo contendere (no contest) to attempted lewd or lascivious act on a child under 14, a violation of Penal Code section 288(a). The court placed him on three years of formal probation. In 2012, after successfully completing probation, defendant filed a motion seeking to have his case dismissed (expunged) pursuant to section 1203.4. Penal Code section 1203.4 allows a defendant, upon successful completion of probation, to withdraw a plea of guilty or nolo contendere and have the case expunged by the court.

California’s Expungement Statute

A trial court has no discretion to deny a 1203.4 motion if the defendant has satisfied all the terms of probation, unless one of the exceptions specified in section 1203.4(b) applies. Penal code section 1203.4(b) provides that “any violation” of certain sex offenses, including section 288, are not eligible to be expunged. However, section 1203.4(b) does not expressly prohibit the expungement of attempted violations of the sex offenses listed in that section. The District Attorney’s argument in the appeal was that an attempted violation is also covered by the exceptions because of the “any violation” wording used in that subsection.

The Court’s Analysis

The court’s decision analyzed the wording of the statute and the legislature’s intent when enacting the exceptions in California’s expungement statute. The plain language of the statute does not include attempted violations of the enumerated offenses. Additionally under well-established case law, an attempt is a “separate” and “distinct” offense from the completed crime.

The Court then concluded the literal interpretation of the statute is not contrary to the legislative intent, which was to “prohibit persons convicted of specified sex offenses” from expunging his or her record and to conserve resources that would be use to investigate if those convicted of sex offenses were able to file for an expungement. However, the court decided that allowing those convicted of an attempted violation to expunge their record does not thwart that purpose. In reaching this decision, the Court of Appeal agreed with their sister court in the Fourth District, which had previously ruled on this same question in 2006. The Court here also reasoned that if the legislature had the desire to amend the statute, there had been ample opportunities since that 2006 decision.

Supervising attorney Jennifer Strange argued the case. More information on California expungement can be found here.

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6 Responses to California Appellate Court Upholds Expungement of Attempted Sex Offense

  1. raul a. c. says:

    How does this solve my case? Please let me know.

    • Jenna Thorne says:

      Hello Raul, this case only has a direct affect on those convicted of an attempt of a sex offense (not the completed crime). If you have questions on your specific case, please contact us. You can run through the eligibility test here or contact our office to discuss your case over the phone 800-399-6528. Thank you, and let us know if you have any other questions.

  2. rs says:

    , unless one of the exceptions specified in section 1203.4(b) applies. Penal code section 1203.4(b) provides that “any violation” of certain sex offenses, including section 288, are not eligible to be expunged. How does this apply to pre 97 convictions?

    • Jenna Thorne says:

      This case only applies to attempted sex offenses, and the decision only affects those individuals who were convicted of an attempt of a sex offense. The court decided that an attempt is not “any violation” of the completed crime and therefore is not excluded from the expungement relief of PC 1203.4. If you have a pre-1997 sex offense on your record, please run through the online eligibility test to see if you are eligible for an expungement or a Certificate of Rehabilitation. Thank you.

  3. pete garcia says:

    lets hope that if the expungements are granted that the DOJ will remove the files from thier databases through a voluntary state expungements order so federal privacy will be enjoyed by those with lesser minors crimes dont feel expungement is cheating them by attorney but attorneys like Jennifer are helping to reenter the real working after being reducated.

    • Jenna Thorne says:

      Hi Pete, we agree that a CA expungement could provide an even higher level of relief such as removal of the records completely from the DOJ. That is something the legislature will have to work on in the future. However, as you mentioned a CA expungement helps significantly with individuals reentering the workforce. We are happy to help people like you be able to do that.

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