Please state the scope of representation that you will
be providing with the skills learned from this training.
A) Limited Scope Representation
B) Full Scope Representation
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Determining Eligibility for
Expungements & Penal
Code 17(B) Reductions
Expungements and Prop 47 Clinic Training
Training Module 1
Kevin Reyes, Legal Aid Foundation of Los Angeles
Think About It
What percentage of Americans have a
criminal record?
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What percentage of the world’s
prisoners are in the U.S.?
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By what percentage does having a criminal record
reduce the chance of a call back for a job interview?
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Reality Check
• Approximately 1 in 4
Americans (65 million) has a
criminal record.
• The US has 5% of the world’s
population and 25% of the
world’s prisoners.
• Having a criminal record
reduces callbacks by 50%
US Bureau of Justice Statistics
2012 and Census estimates 2012
Learning Objectives:
1. Describe how expungements operate to
remove legal barriers to employment.
2. Identify and describe the eligibility
requirements for expungements.
3. Identify the 3 different types of expungements.
4. Determine when expungements are
discretionary and mandatory.
5. Identify 3 step expungement petition process
6. Describe how Penal Code Section 17(B)
operates to reduce a felony to a misdemeanor.
Agenda
1. What Can and Can’t An Expungement Do
2. Expungement Eligibility Requirements
3. 3 Types of Expungements
4. Mandatory vs. Discretionary
Expungements
5. 3 Step Expungement Petition Process
6. Penal Code 17(B) Felony Reductions to
Misdemeanors
1. What
Can & Can’t
Expungements
Do?
Penal Code Section 1203.4
What is an Expungement
Expungement = Dismissal- a
dismissal “sets aside or
dismisses” some criminal
convictions under Penal Code
Sections 1203.4, 1203.4(a) and
1203.41.
Benefit and Limitations of a
Dismissal
What’s The Benefit: Main benefit Helps with
private sector employment by shielding what
some employers are able to find out about a
past conviction.
What Are Its Limitations:
• Conviction is not wiped away, sealed, purged
or destroyed!
• Conviction still appears on live scan
A Dismissal Will Not….
•Will not reinstate the right to possess a
firearm,
•Will not prevent the dismissed conviction
from being used as a "prior" if defendant is
prosecuted for another offense,
•Will not prevent the US government from
considering the offense for immigration
purposes,
•Will not relieve people required to register
as sex offenders of their duty to register,
•Will not re-instate driving privileges if they
have been suspended as a result of the case
Does getting an expungement mean the
conviction will entirely go away?
A) True
B) False
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What will the conviction look like on a Live Scan
report of a person who has had an expungement?
A) The conviction will not show up.
The conviction will appear but as
dismissed.
There will be no change to the conviction
C)
status .
B)
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2. Expungement
Eligibility
Requirements
Penal Code Section 1203.4 / 1203.4a / 1203.41
Eligibility General Rule:
a) Petitioner Must be Eligible for Expungement
b) Conviction Must be Eligible for Expungement
2(a) Eligible Petitioners
Rule: In order to be an eligible person for
expungement the Petitioner must meet
ALL of the following requirements:
1. Not Currently serving a sentence
(currently incarcerated, probation,
parole)
2. Not Currently Facing Criminal Charges:
including traffic tickets and diversion
programs
2(b) Eligible Convictions
Rule: If eligible for dismissal, the following must be
true:
1. Conviction not for the following:
• Some prison time convictions.
• Failure to stop and submit to inspection of
equipment or unsafe conditions endangering a
person.
• Juvenile adjudications.
• Federal convictions.
• Out of state convictions they must contact
attorney in state of conviction
2. Client Did Not Serve any Time in State Prison
for Conviction (2 Exceptions)
2 Exceptions to No Prison
Time Requirement
The following function as a way around the
requirement:
1. AB 109 Realignment: If the petitioner was
sentenced to serve a state prison sentence in
county jail under realignment, then the
conviction is still eligible for expungement.
2. Prop 47 Relief: If the petitioner successfully
reduces a felony conviction to a misdemeanor
via Prop 47, then the petitioner may be eligible
for expungement (Prop 47 to be discussed in
detail in Training Module 2).
We can assist clients with out of state or
federal expungements.
A) True
B) False
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Clear
Select which of these offenses are
ineligible for expungement.
Felony adult convictions that the client
served time in prison for.
B) Juvenile adjudications
A)
C) Driving Under the Influence (DUIs)
D) A and B
E) All of the Above
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If you have a client facing a pending robbery charge, can
you expunge a previous drug possession conviction?
A) Yes
B) No
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3. Types of
Expungements
& Their Effect
on Timing of
Application
The Category of Expungement Effects the
Timing of the Petition
3 Types of Expungements
The following type of expungements effects timing of
the application:
1. If probation granted(1203.4)
•
May apply anytime after probation is completed.
2. If probation not granted (1203.4a)
• Must be misdemeanor or non traffic infraction.
• May apply one year after date of conviction.
3. If sentenced under AB109 to serve a prison sentence in
county jail (1203.41)
• If jail sentence + mandatory supervision 1 year must pass since
completion of sentence before client can apply
• If jail sentence only 2 years must pass since they finished their
sentence before the client can apply.
The client was sentenced to serve a prison sentence in county jail under AB 109. The
client was also sentenced to a period of mandatory supervision i.e. parole after being
released. How long must have passed since the client completed their period of
supervision in order to expunge that conviction?
A) 6 months
B) 1 year
C) 2 years
D) 4 years
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A client has three convictions: one for
robbery, one for commercial burglary, and
one for possession of narcotics. The client is
currently on probation for the commercial
burglary charge. However, the client served
two years in state prison for the robbery
charge.
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Ask the Expert
Are you able to expunge the burglary and
possession charges?
No
Yes
Remember, Client cannot be currently serving
a sentence, which includes probation, parole or
facing charges.
Back
4. Court’s
Discretion:
Mandatory vs
Discretionary
Expungement
Is Expungement Mandatory?
An individual is entitled to dismissal as a matter of right and
evidence of pre/post probation conduct is irrelevant only if
the case meets either of the following circumstances:
1. Granted and Completed Probation (1203.4)- If the
client was granted probation and the client successfully
completed all the terms and conditions of probation.
2. Granted Probation But Discharged Early (1203.4) - If
the client was granted probation but was discharged
from probation early.
3. No Probation But Served Time/Paid Fine (1203.4(a))
- If the client was only sentenced to serve jail time or
pay a fine, then dismissal is mandatory only if the client
has “lived an honest and upright life” since the date of
conviction. This means that the client has had no
subsequent conviction.
Discretionary Expungements
Always Discretionary Cases:
• Violations of V.C. § 12810(a)-(e) (includes DUIs)
• If client was sentenced under AB109 (PC
1203.41)
Handling A Discretionary Case: If dismissal is
discretionary, it’s suggested that defendant attend
hearing and provide supporting documentation:
• Declaration
• Letters of support from church, work, etc;
and/or
• Diplomas/Certificates
Best Practices for Declarations:
Make sure to include any of the following in your
client’s case:
• Circumstances surrounding the conviction e.g. drug
abuse issues or mental health issues.
• Positive improvements since conviction e.g. school,
therapy, community involvement.
• Reason client is seeking relief e.g. family or
difficulty finding employment.
• Statement that client has taken responsibility for
actions if they have.
A client was charged with a DUI and sentenced to two years of probation as well as
fines and fees. The client successfully completed all terms and conditions of
probation and paid all fines and fees. Will the client ‘s conviction be discretionary?
A) Yes
B) No
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5. Brief Overview
of Expungement
Petition Process
Petition Forms
• Los Angeles County uses Judicial Counsel forms
• CR-180 – Petition for Dismissal
• CR-181 – Order for Dismissal
• FW-001(Request to Waive Court Fees)
• FW-003 (Order on Court Fee Waiver)
• MC-030 (Declaration)
• Proof Of Service
• Some counties use their own local forms so check
county website
• Some counties/courts also have their own policies
and procedures
3 Step Expungement
Petition Process
1. Fill out paperwork and Client signs all the
following: a) petition; b) fee waiver; and
c) declaration.
•
Copy paperwork three times 1) copy for you
files 2) copy for the client 3) copy for Proof of
Service (remove fee waiver and income info)
2. Serve prosecutor with proof of service.
3. File original petition with clerk.
•
Clerk to stamp copy as proof of receipt.
Which of the following documents must
be signed by the client?
A) Petition and Fee Waiver but not the
Declaration.
B) Petition and Declaration but not the Fee
Waiver.
C) Petition only.
D) Petition, Fee Waiver, and Declaration.
E) None of the above.
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Clear
All counties and courts have the same
forms and procedures for filing an
expungement?
A) True
B) False
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6. Penal Code
17(B) Felony
Reduction
Penal Code Section 17(b)
May petition the court for reduction of a felony to a
misdemeanor at the same time as expungement
application
• Rule: If felony is eligible for an expungement + it
is a wobbler eligible for 17(b)
• Wobbler: an offense that can be charged or
punished as either a misdemeanor or a felony.
• BUT – Still counts as a strike.
• Always Discretionary and requires a declaration.
Wobbler vs. Straight Felony
• Wobbler language “is punishable
by imprisonment in a county jail not
exceeding one year, or in the state
prison for two, three, or four years.”
• Straight felony language
“defendant shall receive an additional
term in the state prison”
Common Wobblers
•
•
•
•
Theft crimes
Assault
Fraud
Spousal battery
On June 21, 2008 the Client was convicted of commercial burglary. Under California Penal
Code Section 459 - it can either be charged as a misdemeanor or a felony. The Client was
convicted of a felony and sentenced to 1 year probation. The Client successfully completed
all terms and conditions of probation. Currently, the Client is not involved with the
criminal justice system. Is the Client’s burglary conviction eligible for dismissal?
A) Yes under 1203.4
B) Yes under 1203.4(a)
C) No
D) Maybe
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Based on the same client, is the Client’s conviction eligible for PC 17(b) Reduction? As a reminder, On June 21, 2008 the
Client was convicted of commercial burglary. Under California Penal Code Section 459 -it can either be charged as a
misdemeanor or a felony. The Client was convicted of a felony and sentenced to serve 1 year probation. The Client
successfully completed all terms and conditions of probation. Currently the Client is not involved with the criminal justice
system.
A) Yes, and it is mandatory.
B) Yes, but its discretionary.
C) No, it is ineligible for reduction.
D) Maybe.
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Based on the same client, can the Court exercise discretion or is dismissal mandatory? As a reminder, On June
21, 2008 the Client was convicted of commercial burglary. Under California Penal Code Section 459 -it can
either be charged as a misdemeanor or a felony. The Client was convicted of a felony and sentenced to 1 year
of probation. The Client successfully completed all terms and conditions of probation. Currently, the Client is
not involved with the criminal justice system.
A) Dismissal is mandatory
B) Dismissal is discretionary
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Clear
Expungement Training Module
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