Sacramento Criminal Defense Lawyer Blog

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.

People who have a "juvenile delinquency adjudication" - commonly referred to as a juvenile record - may petition the court to have that record sealed through the provisions of California Welfare and Institutions Code Section 781. As with expungement for adults, sealing of juvenile records is important for people who violated the law in the past but have since that time maintained a clean record and been contributing members of society.

It's important to understand the difference between juvenile and adult courts. Adult criminal courts in California deal with people 18 years of age and older accused of violating state and local laws. Adults found guilty of misdemeanors or felonies have a criminal record. It is possible at a later date to have this record expunged, whereby the conviction is replaced by a dismissal if specific requirements are met and the court believes that the person has learned from his/her experience. (See all our posts on expungement.)

Juvenile courts deal with minors, people 17 years of age and younger. A person found guilty in juvenile court has a juvenile delinquency adjudication rather than a criminal conviction. The idea is that since young people are not always appreciative of their responsibilities as citizens and understanding of the consequences of their actions, they should not have the stigma of a criminal conviction. Nonetheless, juvenile violations can still hinder people's ability to obtain employment or apply for college, even though they can legally answer no if asked if they have a criminal record. Thus the importance of having juvenile records sealed.

Having juvenile records sealed means that the court orders that all documents pertaining to the case - court records, police and probation reports - are sealed and inaccessible. (Exceptions to this are DMV records pertaining to driving violations.) Once the records are sealed, a person may legally say that he has no convictions and the courts and law enforcement must say that they have no record of a violation. Records are destroyed five years after they are sealed.

You may petition to have your juvenile records sealed if:

• It has been five years since your supervision by juvenile court ended or you have reached 18 years of age, whichever comes first;
• Your case began and ended in juvenile court;
• You have not been convicted of an adult court felony, or an adult court misdemeanor involving moral turpitude;
• You have not been convicted of any crimes listed under California Welfare and Institutions Code Section 707(b) after turning 14 years of age, including murder, arson, violent felonies, robbery, certain types of assaults and sex offenses and other serious violations;
• You can demonstrate that you have been rehabilitated;
• You do not have civil actions pending against you related to the incident that you wish sealed;
• You have paid all fines and restitution.

Continue reading "Sealing Juvenile Records" »

The Wall Street Journal today had an excellent article on the increasing number of people seeking to expunge their criminal records. These were the main points:

• With fewer job openings because of the recession, competition for jobs is fierce.
• More employers are taking the time to conduct extensive background checks.
• Background data from across the country is readily accessible through online databases.

Employers are allowed to ask applicants if they have felonies on their records or other crimes that affect their ability to perform the duties of the job. Many employers, though, ask about misdemeanor convictions as well. The reality is that people have to be able to answer truthfully that they have no convictions on their records if they want to be competitive in today's job market. For those who meet the criteria - completed probation, paid all fines and restitution, no time in state prison for the offense, and no current criminal charges pending - the expungement process allows them to compete on a equal footing.

We have certainly seen evidence of this increase in interest in expungements. What's interesting as well is that we represent people from across the socio-economic spectrum. We see people who are trying to turn their lives around after a series of missteps. We also see people who committed a single crime during their younger days, paid the consequences, and then went on with their lives building families and establishing careers. Now, for a variety of reasons, they are looking for new jobs and their convictions from 20 years ago are limiting their job options. Expungement is vital in allowing them to continue to lead happy and productive lives.

For a more detailed discussion of the expungement process, see our September 25 post. if you have questions about expungement, call us at the Law Office of Nancy King.

"More Job Seekers Scramble To Erase Their Criminal Past," The Wall Street Journal, November 12, 2009

Last week a Los Angeles Superior Court judge agreed to Mel Gibson's request to have his 2006 DUI conviction expunged from his record. This event allows us to follow up on our September 25 post on the expungement process and drive home a couple key points.

First, Mr. Gibson - like all other applicants for expungement in California - had to meet these criteria to qualify: complete probation, pay all fines and restitution, not have spent time in state prison for the offense, and not currently have any criminal charges pending.

Second, the expungement does not remove any mention of the DUI from his criminal record. Instead, his record will now show a dismissal pursuant to California Penal Code Section 1203.4. This is done so that if Mr. Gibson receives another DUI in the future the courts will have a record of what he did before and be able to impose a stiffer penalty. In other words, it will still be considered a "prior" for the purposes of future DUI arrests.

So the process of expungement exists to allow people who have learned from their past mistakes and deserve the opportunity to move forward with their lives without the stigma of a conviction on their records. It also gives the courts a record of what occurred so that if any crimes are committed after the expungement, more severe penalties can be administered.

Continue reading "Mel Gibson's Expungement" »

As a follow up to our last post comparing felonies, misdemeanors, and infractions, today's post reviews expungement, the process by which some people can have convictions removed from their criminal records.

California Penal Code 1203.4 provides certain people convicted of crimes the opportunity to have their criminal records expunged. Expungement is meant for people who were found guilty of a crime but have subsequently turned their lives around. It is critical to remember that the criminal record remains; instead of a conviction, though, it shows a dismissal of the charges.

To qualify for expungement, a person must have completed probation, paid all fines and restitution, not spent time in state prison for the offense, and not currently have any criminal charges pending.

The person seeking the expungement has his/her attorney file a petition with the court asking for the case to the reopened and the conviction set aside. The petition identifies the previous conviction and describes the reasons the court should change the record from conviction to dismissal. Backing evidence, such as a written statement by the petitioner and letters from people who can attest to the petitioner's quality of character, is submitted to the judge for review. The role of the attorney is to convince the court that the petition has merit.

In most instances, expungement allows a person who has a conviction to say truthfully on an employment application that he has not been convicted of a crime. No matter the circumstances, expungement is seen as furthering justice and letting people who have become productive, law-abiding citizens the chance to participate in and contribute to society.

Continue reading "Expungement of a Criminal Record" »