LOCAL PRISON DISMISSAL

FELONY DISMISSAL – LOCAL COUNTY JAIL PRISON SENTENCE

Defendants who have successfully completed their local county jail sentence or mandatory supervision can petition the court to withdraw their plea and dismiss the case.  Penal code section 1203.41 outlines the law for 1170(h)(5) sentences.      

CALIFORNIA FELONY DISMISSAL BENEFITS

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 a defendant is sentenced pursuant to 1170(h)(5) and the court decides that it is in the interest of justice, it may permit the defendant to withdraw his or her plea of guilty or nolo contendere and enter a plea of not guilty.  The court shall then set aside the verdict of guilty, dismiss the accusations or information, and the defendant shall thereafter be released from all penalties and disabilities resulting from the offense.

CALIFORNIA FELONY DISMISSAL REQUIREMENTS

Eligibility for a 1170(h)(5) felony dismissal requires the following:

• Sentence served in local county jail not state prison.
• Completed sentence, community supervision, and paid all fines, fees and restitution.
• You are not currently serving a sentence for any other case, not pending criminal charges, or not on probation on another case.

You may still be eligible for a California felony dismissal 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.

WAITING PERIOD REQUIRED

One Year Waiting Period:

If the judge imposed a “split sentence” in which you served time in the county jail and were then released for a period of community supervision you are eligible to apply for a dismissal after one year has passed from the end of your supervision period. A split sentence is imposed under Penal Code § 1170(h)(5)(b).

Two Year Waiting Period:

If you were ordered to serve your entire sentence in county jail without community supervision you are eligible to apply for a dismissal after two years have passed from the date of your release from county jail. This sort of sentence is imposed under Penal Code § 1170(h)(5)(a).

BENEFIT OF 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 a felony that can be charged as either a felony or 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.  

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.    

PENAL CODE 1203.41. – DISMISSAL OF FELONY CONVICTION WITH LOCAL COUNTY JAIL PRISON SENTENCE  

(a) If a defendant is sentenced pursuant to paragraph (5) of subdivision (h) of Section 1170, the court, in its discretion and in the interests of justice, may order the following relief, subject to the conditions of subdivision (b):

(1) The court may permit the defendant 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 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.

(2) The relief available under this section may be granted only after the lapse of one year following the defendant’s completion of the sentence, if the sentence was imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, or after the lapse of two years following the defendant’s completion of the sentence, if the sentence was imposed pursuant to subparagraph (A) of paragraph (5) of subdivision (h) of Section 1170.

(3) The relief available under this section may be granted only if the defendant is not under supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, and is not serving a sentence for, on probation for, or charged with the commission of any offense.

(4) The defendant shall be informed, either orally or in writing, of the provisions of this section and of his or her right, if any, to petition for a certificate of rehabilitation and pardon at the time he or she is sentenced.

(5) The defendant may make the application and change of plea in person or by attorney, or by a probation officer authorized in writing.

(b) Relief granted pursuant to subdivision (a) is subject to the following conditions:

(1) 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 the accusation or information had not been dismissed.

(2) The order shall state, and the defendant 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 Commission.

(3) 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.

(4) 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.

(c) This section applies to any conviction specified in subdivision (a) that occurred before, on, or after January 1, 2014.

(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) (1) 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.

(2) 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.

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