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Expungement

A conviction can impact you long after you’ve paid your debt to society. Employers can still find the conviction through background checks and employment applications. Protect your employment prospects and strike your conviction from your record.

HOW EXPUNGING A CRIMINAL CONVICTION UNDER PENAL CODE SECTION 1203.4 CAN BENEFIT YOU

An expungement can help you get a job.

To expunge means to erase, and expunging a criminal conviction from your record[i]  can improve your job prospects.

You may have been fortunate enough to have kept your job despite suffering a conviction. But if you ever find yourself looking for another employment opportunity, a conviction may keep you from moving on. Employers may be less likely to interview an applicant who has suffered a criminal conviction, especially if they have a pool of equally qualified candidates to choose from.

That’s where expungement under Penal Code section 1203.4 comes in. In California, employers are prohibited — by law — from asking applicants about a past conviction that has been expunged.[ii] And even if an employer discovers an expunged conviction through a background check, the employer cannot use the expunged conviction as a reason to not hire you.[iii]

An expungement, in effect, removes the stigma from your record and puts you back on a level playing field with all of the other job applicants.

Expungement doesn’t just work for prospective jobs; it protects your current job as well. Even if your current employer discovers that you have an expunged conviction, your employer cannot fire you because of it.[iv] It should be noted that this protection applies only after a conviction has been expunged from your record, not before.

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An additional benefit of expunging your conviction is protection of your credibility in court. If you are ever called to testify as a witness, a conviction expunged under Penal Code section 1203.4 cannot be used to suggest that you are a less trustworthy person.[v]

Are You Eligible for Expungement under Penal Code Section 1203.4?

You are eligible to have your conviction expunged if:

  • You weren’t sent to prison. Generally, if you were convicted of a felony, denied probation, and then sentenced to prison, you are ineligible for expungement.[vi]
  • Your conviction is not for a disqualifying offense. Convictions for certain crimes cannot be expunged from your record. These include crimes involving child molestation; child pornography; and failure to comply with the order of a peace officer, fireman, or traffic officer.[vii]
  • You’ve completed your probation.[viii] In some instances, the Court may agree to terminate your probation early, allowing you to expunge your conviction much more quickly.[ix] Note: If you were convicted of a misdemeanor and not granted probation, then you must wait a year before you are eligible for expungement under Penal Code section 1203.4.[x]
  • You’re not in trouble now. You may not expunge a prior conviction if you are currently charged with a new crime or are currently on probation or serving a sentence for a separate crime.[xi]

There Are Limits to What an Expungement Can Do

Even if your conviction is expunged, there may be instances in the future where it will affect you.

  • You may still have to disclose it. You’ll have to disclose the expunged conviction if you run for public office, apply for a license from a state or local agency[xii], or contract with the California State Lottery Commission.[xiii]
  • It’s “priorable.” If you commit the same crime again in the future, the prosecutor may use your expunged conviction as a sentencing enhancement.[xiv]
  • The long-lasting conditions of the conviction remain intact. For instance, you may not be able to own a gun after being convicted of a felony or of certain firearm-related misdemeanors.[xv] This restriction on gun ownership remains even after the firearm-related conviction is expunged.[xvi] 

Contact A Professional For Help With Your Expungement

Expunging a criminal conviction under Penal Code section 1203.4 is proof that you have paid your debt to society in full and that you have taken the time and have made the effort to erase this misstep from your record. An expungement means that a judge has found you to be a responsible person, ready to move forward with your life.

Michael J. Ocampo, Attorney at Law, is a skilled attorney and a former deputy district attorney. If you’d like to talk to Michael about getting your conviction expunged, then contact him at (714) 451-6834 to schedule a no-charge, initial consultation.

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[i] A conviction will still appear on your record even after it is expunged. However, once expunged, there will be a notation next to the conviction indicating that the conviction was later dismissed via Penal Code §1203.4, which is the expungement statute.

[ii] “No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose … information concerning … a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, [Penal Code] Sections 1203.4[.]” Labor Code §432.7(a)(1). See also 2 California Code of Regulations (“C.C.R.”) §11017.1(b)(3).

[iii] “[N]or shall any employer … utilize as a factor in determining any condition of employment including hiring … any record … concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, [Penal Code] Sections 1203.4.” Labor Code §432.7(a)(1). See also 2 C.C.R. §11017.1(b)(3).

[iv] “[N]or shall any employer … utilize as a factor in determining any condition of employment including … termination … any record … concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, [Penal Code] Sections 1203.4.” (Emphasis added.) Labor Code §432.7(a)(1). See also 2 California Code of Regulations C.C.R §11017.1(b)(3).

[v] Evidence Code §788(c). However, the expunged conviction can be used against you if you, yourself, are on trial and choose to testify. See Evidence Code §788(c).

[vi] “Defendant claims that … the Legislature intended to extend the benefits of section 1203.4 to state prison parolees. He argues that the broad ‘interests of justice’ language of the 1971 amendment should be read to encompass one in his position. We are not persuaded. Defendant’s argument flies in the face of the very language of the statute. The section speaks only in terms of probation. Nowhere in the text of that statute does the word ‘parole’ appear, either expressly or by implication. … [P]robation and parole are quite different animals.” People v. Borja (1980) 110 Cal. App.3d 378, 381; Penal Code §1203.4(a)(1). Note: Depending on the underlying felony, a person who was sentenced to prison followed by a period of “mandatory supervision” may be eligible for expungement. See Penal Code §§1170(h)(5), 1203.41(a).

[vii] Penal Code §1203.4(b). Note: Convictions for certain traffic offenses (such as DUI, hit & run, and driving on a suspended license) are ineligible for expungement, unless the Court permits you to do so. See Penal Code §1203.4(c); Vehicle Code §§12810(a)-(e).

[viii] Penal Code §1203.4(a)(1).

[ix] Penal Code 1203.3(a).

[x] Penal Code §1203.4a.

[xi] Penal Code §1203.4(a)(1).

[xii]  For instance, an expunged conviction must still be disclosed when applying for a license to be a registered nurse or a private investigator. Note: A licensing agency may not deny granting a license to an applicant solely because the applicant has an expunged conviction. See Business and Professions Code §480(c).

[xiii] Penal Code §1203.4(a)(1).

[xiv] Penal Code §1203.4(a)(1), Vehicle Code §13555.

[xv] Penal Code §§29800(a)(1), (c).

[xvi] Penal Code §1203.4(a)(2). Additionally, if your conviction was for a felony, you may never be able to own a firearm again, even if the conviction is expunged. See Penal Code §§1203.4(a)(2); 29800(a)(1), (c). Other instances where the consequences of a conviction persist despite an expungement: If a driving-related conviction results in suspension of a driver’s license, expunging the conviction will not restore the license. See Vehicle Code §13555. Same thing if a person is prohibited from running for public office because of his conviction; he will remain prohibited from doing so even if the conviction is expunged. See Penal Code §1203.4(a)(3).