Misdemeanor Dismissal

MISDEMEANOR 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.

MISDEMEANOR DISMISSAL WITH PROBATION

Defendants who were sentenced to a misdemeanor with probation are eligible for an expungement under Penal Code section 1203.4.  Penal code section 1203.4 outlines the law for misdemeanor expungements with probation.    

MISDEMEANOR DISMISSAL WITHOUT PROBATION

Defendants who were sentenced to a misdemeanor with no probation are eligible for an expungement under Penal Code section 1203.4(a).  Penal code section 1203.4(a) outlines the law for misdemeanor expungements without probation.    

CALIFORNIA MISDEMEANOR 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 misdemeanor conviction.  Several misdemeanor crimes like petty theft, marijuana possession, disturbing the peace, trespassing, fraud, illegal purchase of alcohol, and failure to appear in court would look bad on a background check.  That is why you should take the steps necessary to clear your criminal record of any misdemeanors.  Once your misdemeanor is dismissed in most cases you can confidently and legally answer that you were never convicted of a crime.      

BENEFIT OF MISDEMEANOR DISMISSAL

By law, a private employer many not ask a job applicant about any misdemeanor conviction dismissed under 1203.4 (2 Cal. Code. Regs 7287.4(d)).  California law says that it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning:

• Any arrest or detention which did not result in conviction;
• Any conviction for which the record has been judicially ordered sealed, expunged, or statutorily eradicated (e.g. juvenile offense records sealed pursuant to Welfare and Institutions Code Section 389 and Penal Code Sections 851.7 or 1203.45); and misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed pursuant to Penal Code Section 1203.4; or
• Any arrest for which a pretrial diversion has been successfully completed pursuant to penal Code Sections 1000.5 and 1001.5…”

CALIFORNIA MISDEMEANOR DISMISSAL REQUIREMENTS

Eligibility for a misdemeanor dismissal requires the following:

• Misdemeanor is eligible for dismissal.
• 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 misdemeanor 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.

OFFENSES NOT ELIGIBLE FOR MISDEMEANOR DISMISSAL

Misdemeanor expungement is not available to persons convicted of the offenses listed in Penal Code section 1203.4(b).  These include certain sex offenses, a few traffic offenses, and infractions.

MISDEMEANOR DISMISSAL STILL HAS CONSEQUENCES

It doesn’t prevent the conviction from being pled and proved like any other prior in a subsequent prosecution including for instance a petty theft, or DUI case.  A misdemeanor 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 MISDEMEANOR DISMISSAL LAW

Penal Code Section 1203.4 – Dismissal With Probation

(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.

Penal Code Section 1203.4 – Dismissal Without Probation

1203.4a.  (a) (1) Every defendant convicted of a misdemeanor and not granted probation, and every defendant convicted of an infraction, shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or 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 accusatory pleading against the defendant, who 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 Chapter 3 (commencing with Section 29900) of Division 9 of Title 4 of Part 6 of this code or Section 13555 of the Vehicle Code. The defendant shall be informed of the provisions of this section, either orally or in writing, at the time he or she is sentenced. The defendant may make an application and change of plea in person or by attorney, or by the probation officer authorized in writing; provided, that 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 relief had not been granted pursuant to this section.

(2) This subdivision applies to convictions which occurred before, as well as those occurring after, the effective date of this section.

(b) Subdivision (a) does not apply to any misdemeanor falling within the provisions of Section 42002.1 of the Vehicle Code, to any infraction falling within the provisions of the Vehicle Code, or to any local ordinance adopted pursuant to the Vehicle Code.

(c) A person who petitions for a dismissal of a charge under this section may be required to reimburse the county and the court for the cost of services rendered at a rate to be determined by the county board of supervisors for the county and by the court for the court, not to exceed sixty dollars ($60), and to reimburse any city for the cost of services rendered at a rate to be determined by the city council not to exceed sixty dollars ($60). 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 cost for services established pursuant to this subdivision.

(d) A petition for dismissal of an infraction pursuant to this section shall be by written declaration, except upon a showing of compelling need. Dismissal of an infraction shall not be granted under this section unless the prosecuting attorney has been given at least 15 days’ notice of the petition for dismissal. It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.

(e) Any determination of amount made by a court under this section shall be valid only if either (1) made under procedures adopted by the Judicial Council or (2) approved by the Judicial Council.

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