As a California Criminal Defense Lawyer I get calls every day from people looking to clean up their criminal record. Most of the time the motivation to do something about an old criminal conviction and clean up the mess comes from one of following factors:
1-Employment-This includes people who are looking for a job but getting turned down because of a criminal record, people who have a job but they are facing some type of background check or security clearance, and people who are attempting to obtain any type of special licensing from any state or private agency. It’s amazing to me how many people have had their job for 15 years without any problems arising from an old misdemeanor conviction but suddenly it’s a matter of life and death to get it cleared. A lot of calls start with, “well my company just merged with megacorp and the new HR people are cleaning house”.
2-Child Custody Disputes-Divorce is hard and nothing stirs emotion like a dispute over child custody and support. Lawyers often debate whether client’s get more intense in battles over money (civil and business disputes) or battles of the heart (criminal and family law cases). When it comes to child custody, we are talking about a double whammy. You are fighting over the amount of time you will spend with your children AND the amount of money you will pay to your ex. So it should be no surprise that the “gloves are off” in a dispute like this. Ex spouses and ex lovers will go to no end to throw dirt on the other side in a case like this and an old criminal conviction can often be the weapon of choice when launching an attack. Clean it up and the balance of power is restored.
3-Immigration Issues-Whatever your personal politics may be on immigration reform, no one can deny that we are a nation of immigrants. Unless you are a Native American, you are an immigrant, or the child of immigrants. When deportation proceedings begin, the American Dream quickly turns into a nightmare. Other people may be applying for naturalization. For these clients, an old conviction could be getting in the way of obtaining lawful permanent residency or citizenship.
So whatever the reason is behind your new found desire to clean up old business, how do you go about cleaning up an old criminal conviction in California? There are several remedies available and to find out which one is the best move for your particular situation can be a complicated decision. Before you start throwing money at the problem, it would be best to consult with a California criminal defense lawyer. When you call a lawyer to get this done, make sure you get more than just a quote for services. If the lawyer does not ask WHY you are trying to clean your record, you have the wrong lawyer. The reason for this is that there is no magical way to completely ERASE a criminal conviction. There are several different strategies to clean them up and each method has it’s pros and cons.
Here’s a quick overview of what’s available
Penal Code Section 17(b)
This motion can be used to reduce many California felonies to misdemeanors. The motion can be made at virtually any point in the proceedings so it doesn’t matter if your case is still in court or if the case is 10 years old. This motion is a very valuable tool as the difference between a felony and a misdemeanor on your record is significant. Note that not all felonies can be reduced and even though the statute says that you are “relieved of all felony penalties” when the reduction is granted, there are some limitations. For example, getting this motion granted will not restore your right to purchase or own a firearm in California.
Penal Code Section 19.8
This motion is similar to a 17(b) except it is used to reduce a misdemeanor to an infraction. In my opinion this motion is extremely useful and often overlooked by most attorneys. 95% of criminal defense attorneys will sell an expungement or 1203.4 motion to a client (see below), in situations where a 19.8 will better serve the client’s needs. 19.8 motions are not available for all misdemeanors and limitations do apply. One major benefit of the 19.8 motion is that this type of relief will get results under federal scrutiny (like an immigration situation) while 1203.4 motions will not.
Penal Code Section 1016.5
This motion deals specifically with the issue of immigration. The consequences of a criminal conviction are so damaging to an immigrant that the California Penal Code actually mandates that everyone be given a proper advisement before entering a guilty or no contest plea to a criminal charge. If the advisement was not properly given, or if there is an inadequate record of the advisement, it may be possible to obtain relief with this motion.
Penal Code Section 1203.4
This motion is commonly known as an expungement. Per the code, if this motion is granted the court will allow you to withdraw the previous plea of guilty or no contest, a plea of not guilty will be entered in it’s place, and the case will be ordered dismissed. Sounds great right? It is definitely a good thing, but it’s not a magic wand. Having relief granted under this section will certainly improve your record, but it won’t erase it. It’s also not available on all cases. This motion only applies to cases where you were granted probation and probation has been completed. If you had any violations while on probation, the relief is discretionary.
Certificate of Rehab
This motion is used to clean up a felony when someone has been sentenced to prison. So if your felony conviction resulted in a probationary sentence, consider a 17(b) and/or a 1203.4 motion. If you were not granted probation, or if you violated your probation and you were sentenced to prison, the certificate of rehab becomes your avenue of relief. Certificates of rehab are not available for all cases and they are fairly difficult to obtain. Applicants must meet a minimum number of years free from custody, and must also comply with a minimum residency requirement. The application process is tedious and paperwork intensive.
An application for pardon can be generated from a successful certificate of rehab or in limited cases you can skip that step and apply for a “direct” pardon. Pardon’s are difficult to obtain but when granted your record is clean. For the most serious felony convictions, they are the only form of relief available. Obtaining a pardon may be a long shot, but in some cases, it’s your only shot.