A ruling by the California State Appellate Court for the Second District confirms that expungements may be granted for those people who violated the terms of their probation so long as their conduct since that time demonstrates that they have reformed and become contributing members of society.
The defendant in this case, Myrle Dennis McLernon, had filed a 1203.4 motion seeking expungement of his criminal record, which means that his conviction would be changed to a dismissal. (See our post from September 25, 2009, for a detailed look at the expungement process.) In most instances getting an expungement requires a person to complete probation, pay all fines and restitution, not spend time in state prison for the offense, and not currently have any criminal charges pending.
But the law also allows for an expungement if the terms of probation were violated but the court determines that expunging the record would "serve the interests of justice." What this means is that the defendant has the opportunity to submit evidence demonstrating how he/she has become a good citizen and turned away from crime.
In People v. McLernon, though, the Attorney General's Office put forward the fanciful argument that this evidence of changed behavior should only come from the period of probation. In other words, what the defendant did after probation ended should not be considered.
The appellate court dismissed this argument, saying that nothing in the law precludes courts from taking into account actions after the probation period has ended. From our perspective, this is the only position that makes sense, since a change in behavior for the good would in most cases come after the time when probation was violated.
The bottom line is this: a person who wants to expunge his criminal record but failed to complete probation can still have his attorney file a 1203.4 motion and present accompanying evidence of that person's reformed life and commitment to the responsibilities of citizenship. The judge will then weigh the evidence and determine whether the interests of justice call for an expungement of the record.
Obviously, hiring an attorney with experience with expungements is crucial if the motion is to be successful, particularly when there are issues of probation violation. Call the Law Office of Nancy King for a review of your case.
