How To Get A Misdemeanor Expunged

Posted on July 6, 2021

To expunge a misdemeanor in California, the defendant has to (1) determine that he or she is eligible for expungement, (2) timely file the appropriate paperwork, and (3) attend the expungement hearing personally, or through a lawyer. Any error in the process can lead to a denial. A denial can keep the defendant from benefitting from sealing his or her criminal history.

What is the California expungement process?

To expunge a misdemeanor conviction in the state of California, the defendant has to:

complete any probation imposed in the criminal case,
make sure the offense is one that can be expunged,
file the right paperwork in the correct superior court within the proper timeframes, and
attend the expungement hearing, whether personally or through an attorney.¹

The process also works for eligible felony convictions, as well.

When can I start the process?

Defendants who want to expunge a criminal conviction generally have to wait until they have completed their probation.² If the offense was a felony covered by the Proposition 47 Realignment Act, defendants may also have to wait an additional 2 years to initiate the process.

Whether it is formal probation or summary probation, all of the terms and requirements of the program have to be done before the defendant is eligible. This includes the payment of any victim restitution and the completion of all community service requirements. Defendants who are eager to expunge the record can complete probation early. They still have to get a court order to grant an early termination of probation before the defendant can start the expungement process.

If the defendant violated probation, it can hurt their chances of getting an expungement. However, it can still happen. The court will just hold a special hearing to decide whether the interests of justice mean that the court should overlook the probation violation.

Many probationers who are represented by a criminal defense attorney from a local law firm will package these motions together. They apply for an early termination of probation and for an expungement at the same time. If the offense was a wobbler, the criminal defense lawyer may also file a motion to reduce the felony to a misdemeanor, as well.

Are misdemeanors the only offenses that can be expunged?

No. California criminal law allows some felonies to be expunged, as well. For a criminal offense to be eligible under California's expungement law, the defendant must have:

completed probation, and
not be currently:
- facing criminal charges,
- on probation for a different criminal offense, or
- serving a sentence for a different crime.³

Additionally, defendants generally must not have served time in California state prison – as opposed to county jail. Serving time in prison at any point in the sentence, whether from the court's initial judgment or due to a probation violation, generally strips the offense's eligibility for an expungement.

However, the Proposition 47 Realignment Act provides some exceptions to this rule. If the defendant would have been sent to county jail, rather than to state prison, for an offense that occurred after 2011, he or she may still be eligible for expungement.⁴ If this is the case, it is in the judge's discretion to grant an expungement.

There are certain felony convictions that can never be expunged. They tend to be for severe sex crimes involving children. Some of these include:

statutory rape (Penal Code 261.5(d) PC),
sodomy involving a child (Penal Code 286(c) PC),
oral copulation with a child (Penal Code 287(c) PC), and
lewd acts with a child (Penal Code 288 PC).

What paperwork has to be filed?

To get an expungement after a guilty plea or after pleading no contest to the charge, defendants have to file a petition for dismissal. First, the defendant has to withdraw his or her plea and enter one of not guilty. If the conviction happened by verdict, the defendant has to request the court to set the verdict or court record aside. Once this is done, a hearing will be scheduled in one of a California court.

The defendant generally will not have to attend this hearing, so long as his or her expungement attorney is there.

At the hearing, the defendant or the attorney will have to show that it is in the interests of justice to expunge the conviction from the defendant's criminal record.

If the judge agrees with the defendant, the conviction will be set aside and the charges dismissed.

However, the prosecutor has to be notified at least 15 days before the hearing.⁵ This is to give the district attorney time to challenge the expungement. If the prosecutor does not object to the expungement, he or she cannot challenge it, later on.⁶

There is also a filing fee to pay. The amount of this fee depends on the county and the type of offense being expunged. Generally, the filing fee is the least expensive for expunging infractions, and the most expensive for expunging felonies.

What are the benefits of expunging a criminal record?

An expungement releases a convicted defendant from nearly all of the penalties and disabilities from the conviction.

The benefits of expunging a conviction, even a misdemeanor, are significant. Some of the benefits are:

making it easier to get hired at a new job,
retaining or becoming eligible for professional licenses or certifications, like a real estate license,
becoming eligible for professional organizations,
not having the prior conviction be used to impeach you during a later court proceeding, and
ending the social stigma of having a public record of criminality.

Among the most important benefits of expungement is to hide the conviction from many types of background checks, including those that check FBI records. This can make it much easier to get a job and earn a living after serving a prison sentence.

However, there are some things that expunging a record will not do. These include:

overturn a suspension or revocation of a driver's license,⁷
restore the right to bear arms under California law,⁸ or
end the duty to register as a sex offender.⁹

These obstacles may only be resolved with a:

California Governor's Pardon, or
California Certificate of Rehabilitation (COR).

Additionally, expunging a criminal record will not necessarily seal the arrest record.

About the Author

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Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.