Right to Expungement in California

Expungement in California is a right in most cases where the person was on probation for a misdemeanor conviction. Darren Chaker prepearation of various post-conviction petitions  provide consistent information concerning Californiaexpungement. Section 1203.4, subdivision (a) states:

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, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. (Emphasis added.)

The statutory language of section 1203.4 is plain on its face. In “any case” in which a defendant has successfully completed his probation, and/or “in the interests of justice” when a court believes a defendant is entitled to relief, the court shall grant the relief requested. Therefore, contrary to the court's beliefs, it not only had the discretion to grant appellant's petition, but according to the language of the statute, by use of phrase “shall ...be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty,” appellant was entitled to the relief sought by his petition.

The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law ....... In determining that intent, we first examine the words of the statute itself.... Under the so-called “plain meaning” rule, courts seek to give the words employed by the Legislature their usual and ordinary meaning.... If the language of the statute is clear and unambiguous, there is no need for construction.... (Bodell Construction Co. v. Trustees of Cal. State University (1998) 62 Cal.App.4th 1508, 1515-1516, citations and internal quote marks omitted.)

In upholding the constitutionality of section 1203.4 against an equal protection challenge brought by a parolee,  the Court said:

[W]e must examine the nature and purpose of probation, in contrast to parole or imprisonment, as reflected in section 1203.4 as it relates to the relief provided in that section... Section 1203.4 provides in relevant part as follows: “(a) 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, ... the defendant shall, at any time after the termination of the period of probation, if he is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he shall thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted ....” (Italics added.)

In Peoplev. Borja (1980) 110 Cal.App.3d 378, 381-382, the court held that section 1203.4 applies only to those who have successfully completed probation and not to those who have been discharged from parole.

(People v. Jones (1985) 176 Cal.App.3d 120, 127. Italics in original.)

In commenting upon the separate and distinct statutory procedures that apply to former probationers and former parolees, the Borja court observed:

“In granting probation, the trial court retains jurisdiction of the defendant. During the period of his probation, the probationer remains in the constructive custody of the court and is bound by the terms and conditions of the court's probation order. Customarily, such order is tailored to the rehabilitative needs of that defendant. If the defendant accepts probation and later violates any of the conditions thereof, the court may then revoke its order of probation and impose sentence upon the offending probationer.

(People v. Borja, supra, 110 Cal.App.3d at p. 383. Italics added.)

Section 1203.4, is therefore, a right granted by the Legislature to a probationer who has successfully completed the term of probation and has not committed any new offense. Appellant meets those standards in this case.

Darren Chaker - Rehabilitation and Expungement

Many motions to expunge a conviction occur in Los Angeles Superior Court due to the population.   Regardless if a motion to expunge is brought in the Superior Court of Los Angeles, Orange County, etc. a Court can alternatively read into section 1203.4 a rebuttable “presumption of rehabilitation” for a defendant who has a certain number of conviction-free years following his/her probation violation. This would not be judicial usurpation of the legislative power, but would merely be this Court carrying out the Legislature's intent that those who have shown rehabilitation should be rewarded with a dismissal under section 1203.4. As indicated above, the Legislature added the “interests of justice” prong to section 1203.4 in 1971 to extend the statute's relief to those who violated or did not fully fulfill the conditions of their probation and therefore do not fit into its first or second prong. See 1971 Cal.Stat. 667. Darren Chaker encourages anyone on probation to comply with all terms of probation since granting expungement at times is within the discretion of the Court, the Defendant wants to impress the Court in every respect and live a proper life.

As another alternative to granting a motion to expunge, a Court can adopt the reasoning in section 1203.4's “interests of justice” prong with section 4852.01's “period of rehabilitation,” given the policy and intent underlying both statutes. When the Court has such discretion to decide whether a Defendant has changes his or her ways, it originates from not just being law abiding, but also documentation such as schooling, consistent work, and being a positive role model.

Qualifying for California Expungement

As discussed in another post by Darren Chaker, there are three ways for a defendant to get a dismissal under section 1203.4: (1) where he “has fulfilled the conditions of probation for the entire period of probation”; (2) where he “has been discharged prior to the termination of the period of probation”; or (3) where “a court, in its discretion and the interests of justice, determines” that he should be granted relief under the statute. Cal. Penal Code § 1203.4(a)(West Supp. 2008).

For instance, a defendant who satisfies the first or second prong of the statute (either because he “fulfilled the conditions of probation for the entire period of probation” or was “discharged prior to the termination of the period of probation”) is automatically entitled to a 1203.4 dismissal as a matter of right. This is so even if the defendant commits another crime while on probation or right after getting off probation. See, e.g., People v. Hawley, 278 Cal.Rptr. 389, 389-91 (Ct. App. 1991)(defendant who was arrested twice while on probation is still entitled to a dismissal under section 1203.4 where his probation was terminated early); People v. Butler, 164 Cal.Rptr. 475, 477 (Ct. App. 1980)(recognizing that “evidence of crimes committed shortly after probation ends, which would seem to conclusively prove no rehabilitation had taken place, have no effect on the granting of relief').

On the other hand, a defendant who violated or did not fully fulfill the conditions of probation is not entitled to a dismissal under section 1203.4 as a matter of right; the granting of relief is entirely discretionary. People v. Chandler, 250 Cal.Rptr. 730, 733 n.2 (Ct. App. 1988); Butler, 164 Cal.Rptr. at 477. In effect, such a defendant remains permanently at the superior court's unfettered discretion; the court can deny his petition even after many conviction-free, upstanding years following his probation violation. As indicated above, at the heart of section 1203.4 is the intent to reward those who have shown rehabilitation.

Expungement in California by Darren Chaker

There are three ways a defendant (who was given probation for his conviction) can get a dismissal under section 1203.4. The first is by “fulfill[ing] the conditions of probation for the entire period of probation.” Id. The second is by being “discharged prior to the termination of the period of probation.” Id. The third is by the court's discretion in the “interests of justice.” Id. Darren Chaker can attest that fulfilling the conditions of probation will likely result in early termination of probation and granting a petition to expunge in a California Superior Court.

A defendant who satisfies the first or second requirement is entitled to a 1203.4 dismissal as a matter of right. People v. Lewis, 53 Cal.Rptr.3d 40, 41 (Ct. App. 2006); People v. Chandler, 250 Cal.Rptr. 730, 733 (Ct. App. 1988); People .v Butler, 164 Cal.Rptr. 475, 477 (Ct. App. 1980). However, a dismissal under the third situation is subject to the superior court's discretion. Chandler, 250 Cal.Rptr. at 733 n.2; Butler, 164 Cal.Rptr. at 477.The “obvious” purpose behind section 1203.4 is “to reward those who have been rehabilitated.” People v. Butler, 164 Cal.Rptr. 475, 477 (Ct. App. 1980)(citing People v. Majado, 70 P.2d 1015 (Cal. Ct. App. 1937)); see also Meyer v. Super. Ct. of Sacramento County, 55 Cal.Rptr. 350, 356 (Ct. App. 1966) (“The expungement of the record under Section 1203.4 is ... a reward for good conduct ....”); People v. Taylor, 3 Cal.Rptr. 186, 190 (Ct. App. 1960)(“The clear intent of [section 1203.4] is to effect the complete rehabilitation of those convicted of a crime.”), superseded by statute on other grounds as recognized in People v. Bell, 778 P.2d 129, 154 (Cal. 1989).