Expungement is defined in Sec 1203.4 of the California Penal Code. The law provides that those individuals that have been convicted of most misdemeanors and some felonies can be allowed to open their case after final judgment. Upon approval, the finding of guilt, either by admission or judgment, would be withdrawn and a judgment of not guilty to be entered. This would have the legal effect of dismissing the case and thus conviction is lifted.
Expungement does not operate as an eraser of the conviction as the case is a matter of public record. What the expungement proceeding does is removal of the conviction but the fact that the case occurred would not be removed from the public records.
Not all convictions though can be expunged. The following are cases that cannot be considered for expungement proceedings.
Felonies and first degree misdemeanors where the victim is a minor or under eighteen years of age;
- Sexual Battery;
- Corruption of a Minor;
- Sexual Imposition;
- Obscenity or pornography involving a minor
Criminal convictions of the above nature cannot be allowed. Furthermore, expungement is not a complete removal of the case as if it did not happen at all. The following are the limitations of expungement proceedings.
For prior convictions. When there is repetition of the commission of a crime or an arrest for a similar or the same offense in the future, expungement of the previous case does not limit the criminal liability but even increases the penalty imposable. This is the process of calling the new offense “priorable”. This means that if an individual has been arrested or convicted of the same expunged case, then the new case would be tried as a more severe crime.
For DUI convictions. Driving under the influence of alcohol or DUI is specifically exempted under the California Penal Code. Thus an expungement of a prior DUI conviction does not have any effect on a second DUI case and will even be considered a “priorible” offense making the latter DUI case much more severe.
For Gun Ownership. There are misdemeanors that have for their penalty the imposition of probation. Once probation is granted, gun ownership as a right is therefore curtailed. Even if expungement has been issued for the probationed offense, the right to gun ownership for the individual would not be returned for exercise.
For Sex Offender Registry. If the misdemeanor or felony is of a sexual nature, so long as the victim is not a minor and where one of the penalties is registration of the individual in the sex offender registry, the case can be expunged. The effect of expungement though does not remove the individual’s name in the sex offender registry.
The expungement of criminal convictions is a serious matter in California. Should you be or know anyone undergoing this process, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.