When you commit a criminal offense, the court can recommend probation in addition to or instead of a jail sentence. The court can recommend formal or informal probation depending on the underlying offense. For misdemeanor offenses, the court can impose an informal probation known as summary probation. You can be subject to formal probation following a felony conviction. Regardless of the type of probation, you must adhere to the terms of probation. Violating the probation terms gives the court a negative perception of the defendant. It can have far-reaching consequences, affecting your ability to expunge your conviction.

Expungement Of A Criminal Conviction

An expungement, outlined under the California PC 1203.4, enables you to withdraw a guilty or no contest plea, re-enter a not guilty plea, and have your criminal conviction expunged. An expungement releases you from all the disabilities and penalties of a criminal conviction. Expungements are crucial in acquiring and maintaining professional licenses or joining professional organizations. The dismissal of a conviction gives you a fresh start away from your criminal past.

The expungement process in California involves petitioning in court under PC 1203.42. You can file the petition:

  • In-person.
  • Through your attorney.
  • Through a probation officer.

When you file the petition, the court can take two actions:

  • Allow you to withdraw a guilty or no contest plea and enter a not guilty plea.
  • Set aside your guilty verdict if you had been convicted after a plea of not guilty.

Either way, the court will dismiss the allegations against you. The court will release all the disabilities and penalties resulting from your conviction.

Ineligibility For Expungement

You can be ineligible for expungement if the court convicts you of a felony offense and you serve time in a state prison. A conviction of certain misdemeanor sex offenses can also make you ineligible to expunge your conviction. You must meet the following eligibility requirements to obtain an expungement:

  • A conviction of an infraction, misdemeanor offense, or felony. You must have been convicted in a state court because federal court convictions are not eligible for expungement.
  • You must not have served time in a state prison or been under the authority of the Department of Corrections and Rehabilitation. Holding cells and county jails are not state prison facilities.
  • Before you apply for expungement, you must satisfy all the requirements for sentencing, including satisfying probation successfully.
  • Pay all the applicable court-ordered fines, reimbursements, fees, and restitution.
  • Complete community service or any other mandatory programs or classes.
  • You should not be currently facing charges for an additional criminal offense.
  • You should not be serving probation for another criminal offense.
  • You should not be serving a sentence for another crime.

You cannot qualify for expungement if you have served in a state prison. In this case, you can consider seeking a California Certificate of Rehabilitation as an alternative to expungement.

You Must Complete Probation Before Seeking Expungement

You can apply for an expungement of your criminal conviction after you complete probation. If the court does not impose probation, one year must pass from the date of conviction before you apply for an expungement. However, even if you are still serving probation, you can file a petition requesting the court to terminate your probation early. The court can only terminate your probation before its expiration if the termination is in the best interests of justice. If you violate the probation terms, terminating your probation would not be in the best interests of justice.

Satisfying Probation Terms

If you are applying to expunge your criminal record, you must have completed probation successfully or obtained an early probation termination. Most people often wonder what it means to satisfy probation successfully. It means that:

  • It means that you have satisfied all the applicable probation terms. This includes paying all fines, restitution to the victim, and completing community service and counseling programs.
  • It also means that you attended all the court hearings. You can attend the court hearings in person or through your attorney.
  • You did not commit an additional crime while you were on probation.

Ways Of Violating A Probation

You can violate the terms of probation in several ways. Understanding what qualifies as a violation can help you avoid failing to comply with the terms of probation. The common probation violations include:

Failing To Meet The Probation Officer

You must regularly meet with the probation officer if you are on supervised probation. The probation officer sets a schedule requiring you to meet them regularly. Missing an appointment is a form of probation violation. Your probation officer can report this violation to the court.

Failing To Attend A Court Hearing

The judge can order you to attend court hearings to review your progress. Failing to attend a court hearing is a blatant probation violation.

Failing To Pay Fines And Restitution

The judge can order you to pay fines and restitution to the victim, depending on your charges. If you fail to pay the fines and restitution as required by the judge, you could be guilty of probation violation.

Failing To Complete Community Service

If the judge sentences you to community service, you must complete several community service hours within a set period. Failing to engage in community service qualifies as a probation violation.

Not Seeking Employment

A common probation condition is obtaining a job or enrolling in school. You would be violating your probation if you fail to do this.

Visiting Certain Places Or Interacting With Certain People

The judge can order you to stay away from certain people or avoid visiting certain places while on probation. Usually, you can be prohibited from visiting areas associated with criminal activities. For example, if you are a gang member, the judge can prohibit you from engaging with gang members while on probation. You would be violating your probation if you visited the prohibited places or interacted with the prohibited people.

Committing An Additional Crime

A common probation condition is that you should not commit an additional crime while on probation. Even committing a mere traffic violation can count as a probation violation.

Violating Probation Terms And Expungement

Having your conviction expunged when you violate the probation terms can be challenging. Any person applying for an expungement must complete probation and adhere to all the probation conditions. However, expungement is not impossible, even if you violate the probation terms. The court can conduct a special hearing to determine whether you are a good candidate for expungement.

Under the California PC 1203.4, you can still seek an expungement even if you have violated probation terms. When deciding whether to grant an expungement, the court considers the following factors:

  • Your behavior and overall performance while on probation.
  • The severity or seriousness of your probation violation.
  • The severity of the underlying conviction.
  • Your overall criminal record and whether you are a repeat offender.
  • Any positive evidence showing that you deserve an expungement. This evidence can include an opportunity to obtain new employment, strong community ties, and support from the applicant’s family.

If you have violated the probation terms and now seek expungement, an attorney experienced in expunging cases can offer the necessary guidance. Petitioning for an expungement even when you have violated probation is not impossible. A seasoned attorney is all you need to help you attain the desired results.

Expunging A Criminal Conviction

After establishing that you qualify for an expungement despite violating your probation terms, you should follow the following steps to expunge your conviction:

Hire An Attorney

You need an attorney to guide you through the time-consuming, confusing, and paperwork-intensive expungement process. The court can deny your application if you make an error during the application process. An experienced attorney can streamline the application process to get it right the first time.

Filling The Application Forms

Your attorney will help you fill out the applicable application forms. You can obtain expungement forms through an internet search or at the relevant courthouse. For example, you will fill out a petition to dismiss your misdemeanor conviction pursuant to PC 1203.4 if you have completed informal probation. You must file a motion to terminate probation if you have not completed probation. If this is denied, you can fill out a petition for dismissal.

You cannot expunge a felony until it is reduced to a misdemeanor. The court can grant your request to reduce a wobbler into a misdemeanor. You can only reduce non-wobbler felonies by completing a form according to PC § 17(b)(3). Only after this can you fill a petition to dismiss a misdemeanor under PC 1203.4. You have to file a form for each conviction to be expunged. You can include character references with the expungement petition.

Filing The Expungement

After you fill out all the necessary forms, you must file them with the court where your case was heard. The court will respond in five months. Different courts have distinct policies and fees. You can submit the expungement forms in person or via mail. Filing the expungement forms on time is essential. For example, before the filing, you must provide the prosecutor with a fifteen-day notice. This will give the prosecutor sufficient time to review the application and object if necessary.

Expungement Hearing

Whether or not an expungement hearing will occur depends on your case. Your attorney will inform you and help you prepare for the hearing if necessary. Ultimately, the judge will make the final decision on whether to grant or deny the expungement. You are more likely to access an expungement if:

  • You can hold down a job.
  • You do not have additional convictions.
  • You have completed the necessary community service.

Re-filing A Denied Petition

If the judge denies your petition for an expungement, you can re-file the request after six months, ensuring you make all the required changes. If the judge grants the expungement, your attorney can seal your case to ensure it will no longer be visible to the public. After sealing your records, you can deny ever having a conviction. However, you must disclose the conviction when:

  • Running in a public election.
  • Applying for employment with the California Lottery Commission.
  • Applying for a state license.

Formal Probation When Sentenced To State Prison

If you served time in a California state prison at the time of judgment or after violating probation, you do not qualify for expungement under PC 1203.4. However, if you would have served time in a county jail after realignment, there is an exemption. You can only have a conviction expunged if the crime for which you went to a state prison would now lead to a jail sentence under Proposition 47 realignment.

The court grants this exception under the California PC 1203.42. Relief under PC 1203.42 is not automatic. The court grants this exception under its discretion. To qualify under PC 1203.42, the crime for which you were sent to state prison must be currently punishable in a county jail and:

  • Two years must have passed from when you completed your sentence.
  • You should not be:
    1. On probation for an offense.
    2. Serving a sentence for any crime.
    3. Under a supervised release for an offense.
    4. Charged with the commission of an additional crime.

However, it is crucial to note that some felony offenses cannot be expunged even after successful rehabilitation. These offenses include sex crimes and certain offenses committed against children like:

  • Violation of California PC 286(c) law against engaging in sodomy with a child.
  • Lewd acts with a minor outlined under PC 288.
  • California law against oral copulation with a child outlined under PC 287 (c).
  • Violating the California statutory rape law outlined under PC 261.5 (d). This law makes it a crime for persons aged 21 years and above to engage in sexual intercourse with people younger than 16 years.

Find An Experienced Criminal Defense Attorney Near Me

Have you violated the terms of your probation and now seek an expungement of your criminal conviction? The experienced attorneys at the Foos Gavin Law Firm can help. Our experienced attorneys provide valuable services to people who have left their criminal pasts behind and seek a new beginning. For decades, we have provided residents of Sacramento with post-conviction services to help clear their criminal records. Contact us at 916-779-3500 to speak to one of our attorneys.