FELONY DISMISSAL

Defendants who have successfully completed probation or have been discharged early can petition the court to withdraw the plea or conviction and dismiss the case.  Penal code section 1203.4 outlines the law for felony dismissals with probation.  

CALIFORNIA FELONY DISMISSAL OVERVIEW

The simple reality is that most jobs require background checks of job applicants.  You don’t want to lose out on a job opportunity because of a prior felony conviction.  Felonies usually look bad on background checks.  That is why you should take the steps necessary to clear your criminal record of any felonies.  Once your felony is dismissed in most cases you can confidently and legally answer that you were never convicted of a crime.  

BENEFIT OF FELONY DISMISSAL

If the petition is granted, the petitioner “is released from all penalties and disabilities” resulting from the conviction.

FELONY DISMISSAL STILL HAS CONSEQUENCES

It doesn’t prevent the conviction from being pled and proved like any other prior in a subsequent prosecution including a three strikes case.  A dismissed felony can still be used as a prior strike in a strike case. A felony dismissal doesn’t relieve a defendant of disclosing the conviction to any direct question or application for public office, licensure for any state or local agency, or for contracting with the state lottery.  It doesn’t permit a person to own, possess, or have in his or her custody or control any firearm.  It doesn’t relieve a person required to register as a sex offender under Penal Code 290 of the obligation to register under that law.  Since there are additional consequences which may be applicable to your case, consult with a knowledgeable expungement attorney regarding your circumstance.

CALIFORNIA FELONY DISMISSAL REQUIREMENTS

Eligibility for a felony dismissal requires the following:

• Felony is eligible for expungement.
• Probation has ended, has been terminated early, or court finds it’s in the interest of justice.
• All requirements of your probation have been fulfilled successfully including payment of all restitution and court fees related to the case.
• You are not currently serving a sentence for any other conviction or have pending criminal charges.
• No new crimes have been committed since your conviction

You may still be eligible for a California Felony Expungement even if you have been in additional trouble.  It is up to the judge who hears your case to decide if he will grant the dismissal.  Factors judges typically consider is seriousness of the new crime, length of time which has passed since the crimes were committed and good things you have done with your life since your convictions.

REDUCTION OF FELONY TO MISDEMEANOR

If you are convicted of a felony with probation on a “wobbler” offense, the court upon application may declare the offense to be a misdemeanor (Penal Code 17(b)(3)).  A “wobbler” is any felony which can be charged as either a felony or a misdemeanor.  In deciding to reduce a felony to a misdemeanor the court must give “individualized consideration of the offense, the offender, and the public interest.” (People v Superior Court (Alvarez) (1997) 14 C4th 968,978).  Any felony wobbler offense that can be reduced to a misdemeanor should be reduced by the judge prior to having the charged dismissed.      

BENEFIT OF REDUCTION OF FELONY TO MISDEMEANOR

Once the felony is reduced to a misdemeanor the crime is considered a misdemeanor “for all purposes.”   There are exceptions to this rule.  Some convictions may still be considered a strike under the Three Strikes Law (Penal Code 667(d)(1), 1170.12(b)(1)).  The federal government may still consider the conviction a felony for purposes of its gun laws (US v Tallmadge (9^th Cir 1987) 829 F2d 767, 770).  However, 18 USC 921(a)(20) recognizes some state expungements and set asides as it applies to gun laws.  

CALIFORNIA FELONY DISMISSAL LAW

California Penal Code Section 1203.4

(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, 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. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.    Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.  Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office. This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.

  (b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.

 (c) (1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.     (2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant.

  (d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.

  (e) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.    It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.

  (f) If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.

  (g) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.

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