Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

  1. Home
  2.  » 
  3. Criminal Defense
  4.  » 
  5. General Defense Representation
  6.  » Expungements and Background Checks

Expungements and Background Checks

Under what circumstances will a court dismiss a prior felony conviction?

There are essentially two situations where a court may dismiss a prior felony conviction: (1) where the conviction resulted in the defendant being placed on probation and (2) where the conviction resulted in the defendant being sentenced to county jail.

Dismissal of offenses where the sentence was probation

Penal Code section 1203.4, subdivision (a)(1) states that a criminal defendant who was placed on probation is entitled to have his or her case dismissed in three separate circumstances:

In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section[.]

(Pen. Code, § 1203.4, subd. (a)(1).) Thus, there are three situations where a court may dismiss a prior conviction: (1) where a defendant successfully completed probation, (2) where a defendant was discharged prior to completing probation, and (3) where the court determines that the interests of justice warrant dismissal.

The first two bases are mandatory, whereas the third basis is discretionary. In other words, under the first two scenarios, the court must dismiss the case. Under the third scenario, the court may dismiss the case. As noted by one court, “both the plain language of the statute and the legislative history of the 1971 amendment to the statute [citation] show that the purpose of the amendment to add discretionary relief was to give trial courts the power to set aside a conviction after the termination of probation whenever the circumstances warranted it. [Citations.]” (People v. McLernon (2009) 174 Cal.App.4th 569, 576, fn. omitted; see also People v. Butler (1980) 105 Cal.App.3d 585, 587 [“A grant of relief in the third situation is clearly discretionary.”].)

What does the “interests of justice” mean?

The phrase “interests of justice” is a relatively vague legal standard that does not have any strict definition. Essentially, this standard allows courts to grant or deny a petition for dismissal whenever they find it appropriate. Nevertheless, courts have provided a little guidance on this issue. For example, one court stated that “consideration of post-probation conduct is not precluded under the statute.” (People v. McLernon, supra, 174 Cal.App.4th at p. 572.) Another court indicated that “[n]o evidence of rehabilitation is required to be entitled to relief” under Penal Code section 1203.4. (People v. Butler, supra, 105 Cal.App.3d at p. 588.)

What if I ended up going to state prison because the court revoked my probation?

The relief available under this section of the penal code only “applies to probationers, not parolees or former prisoners.” (People v. Parker (2013) 217 Cal.App.4th 498, 502.) As a result, if a trial court revokes probation and sends a defendant to state prison, “the defendant’s status changes from ‘probationer’ to ‘prisoner’ and the defendant is ineligible for section 1203.4 relief.” (Ibid.)  However, a person sent to prison under the re-alignment of act of Assembly Bill 109, i.e., a county-jail prison sentence, can get an expungement under Penal Code section 1203.41.  (See, below.)

Dismissal of offenses where the sentence was county jail

 A relatively new law in California expands the circumstances where a court may dismiss a conviction beyond probationers. Under Assembly Bill No. 651, courts may now “allow a defendant sentenced to county jail for a felony to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty, after the lapse of one or 2 years following the defendant’s completion of the sentence, as specified, provided that the defendant is not under supervision as specified, and is not serving a sentence for, on probation for, or charged with the commission of any offense.” (Stats. 2013, ch. 787.) Nevertheless, this new law is discretionary and, like the third basis discussed above under Penal Code section 1203.4, the court may grant relief “in its discretion and in the interests of justice.” (Pen. Code, § 1203.41, subd. (a).)

Relief under Penal Code section 1203.41 is only available to defendants who were sentenced to county jail. (Pen. Code, § 1203.41, subd. (a).) As a result, if you were sent to state prison, you are not eligible to have your conviction dismissed under this section. There are also specific waiting periods under the statute depending on your sentence (Pen. Code, § 1203.41, subd. (a)(2)), and a defendant who is currently on probation, on supervision, serving a sentence, or charged with any offense is not eligible (Pen. Code, § 1203.41, subd. (a)(2)).

 Will my expunged conviction show up in a background check?

Your expunged conviction should not appear in a background check conducted in California. Furthermore, even if the offense is discovered by an employer, California Labor Code section 432.7, subdivision (a)(1) prohibits an employer from seeking or utilizing as a factor in determining any condition of employment any record “concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law.” (CA Labor Code, § 432.7, subd. (a)(1).) In other words, once your conviction is expunged, an employer cannot hold that against you in any way, even if your expunged conviction appears on a background check.