There are many reasons why a judge may deny a petition for § 1203.4 dismissal in California.1 In some cases, judges may be constrained by certain requirements of the law forcing them to grant or deny an expungement. In other cases a judge may have discretion, or freedom to decide, whether to grant an expungement.
California Penal Code Sections §1203.4 and §1203.4(a) set out the legal requirements to petition for a dismissal in California. The important thing to note is that certain types of convictions are not eligible for expungement. Serious sex offenses, child pornography, and certain vehicle offenses are not eligible for expungement. The full list of offenses not eligible for expungement if probation was sentenced includes:
Also, the full list of offenses not eligible for expungement if probation was not sentenced and the offense is a misdemeanor or infraction includes:
A person convicted of one the above listed offenses is not eligible to petition for §1203.4 dismissal. Also, if you served time in state prison (not jail) or if you were on parole your offense will not be eligible for expungement.
If you have been sentenced to probation, then completing your probation is another requirement that must be met in order to qualify to get your conviction expunged. If you are still on probation, you may be eligible to have your probation terminated early. Once your probation is terminated, if your offense is not one of the prohibited offenses listed above, you may then apply for expungement. If you were not sentenced to probation, then you must wait one year from the day you were convicted in order to apply for expungement.
Another requirement for receiving expungement is that you do not have any pending criminal charges and are not currently serving a sentence or on probation for any offense.
Your expungement can also be denied if it was not drafted and filed correctly. There are timelines and procedures that must be met when filing your expungement petition with the court. Also expungement petitions must be filled out properly. Missing or incorrect information on your petition can cause you expungement to be denied or delayed.
If you did NOT violate any terms of your probation, then you are entitled to an expungement (the judge cannot deny your petition). However, if you DID violate a term of your probation, and have since been discharged from probation, the judge may deny your expungement petition. Keep in mind that if you were arrested and convicted of a crime while serving probation, you have violated the term of your probation requiring you to remain law abiding. Under these circumstances, the judge has discretion whether to grant your expungement in the interest of justice (discretionary provision).
In determining whether to grant an expungement under the discretionary provision, the trial court may consider any relevant information, including the defendant’s post-probation conduct.2
This means that the judge, when assessing whether or not to grant an expungement in the interest of justice, will consider: when your probation violation occurred, what the circumstances surrounding your probation violation were, whether or not your probation violation was similar to the original charge, and the events following your probation violation or termination. Events following your probation violation or termination that are relevant to the judge’s decision include your: sobriety (if applicable), education, professional advances, community involvement, fulfillment of family responsibilities, and all other evidence of personal development.
If you have violated a term of your probation, or suffered a subsequent conviction, it is probably best to avoid future violations and to increase your personal development and positive contacts with the community, particularly in a capacity that is relevant to the original conviction. Doing so will increase your chances of getting your expungement granted.
If you have not paid all of your court ordered fines or restitution, the judge may deny your expungement. While the judge may have some discretion, the best thing to do is to try to pay the outstanding fines and restitution to avoid denial of your petition. This will increase your chances of having your expungement petition granted.
The judge who handles your expungement case can dismiss or deny your petition for many reasons. The judge can even deny or delay your petition just because it is incorrectly filled out or uses the wrong form. Additionally, the prosecutor or probation officer can choose to object to your expungement petition. If that happens, you want to have an experienced and established law firm on your side to advocate for you and respond to the objection.
Having the proper representation can make the difference between having your expungement petition granted or denied. RecordGone, a division of Higbee & Associates, has helped thousands of people around the country clear their records and they have the experience, drive, and resources to help you get your case expunged.
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