California Expungement Law

Blogger, Darren Chaker
Darren Chaker, blogger, in Century City, Los Angeles.

California Penal Code section 1203.4, Darren Chaker writes, allows for expungement of a conviction. Pursuant to section 1203.4, subdivision (a), a probationer is entitled as a matter of right to have the plea or verdict changed to not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed, if he or she has either (1) fulfilled the conditions of probation of the entire probationary period or, (2) been discharged prior to the termination of the probation period. (People v. Bradus (2007) 149 Cal.App.4th 636, 641; People v. Lewis (2006) 146 Cal.App.4th 294, 297.) In other words, ‘”[i]f the petitioner establishes either of the necessary factual predicates, the trial court is required to grant the requested relief.’ ” (People v. Lewis, supra, 146 Cal.App.4th at p. 294, quoting People v. Hawley (1991) 228 Cal.App.3d 247, 249-250, italics original.)

In People v. Lewis, the court noted that:

It was apparently intended that when a defendant has satisfied the terms of probation, the trial court should have no discretion but to carry out its part of the bargain with the defendant.

(People v. Lewis, supra, 146 Cal.App.4th at p. 294; see In re Griffin (1967) 67 Cal.2d 343, 347, fn. 3 [“On application of a defendant who meets the requirements of section 1203.4 the court not only can but must proceed in accord with that statute.”].) The court also reiterated the concept that:

“ ‘The expunging of the record of conviction is, in essence, a form of legislatively authorized certification of complete rehabilitation based on a prescribed showing of exemplary conduct during the entire period of probation.’”

(People v. Lewis, supra, 146 Cal.App.4th at p. 294, quoting People v. Chandler (1988) 203 Cal.App.3d 782, 788-789, quoting People v. Turner (1961) 193 Cal.App.2d. 243, 247; see People v. Field (1995) 31 Cal.App.4th 1778, 1787 [relief under section 1203.4 is intended to reward an individual who successfully completes probation]; People v. Johnson (1955) 134 Cal.App.2d 140, 143 [“The obvious purpose is to secure law compliance through an attempt at helpful cooperation rather than by coercion or punishment.”].)

Section 1203.4, subdivision (a), also authorizes a trial court to grant relief in any case in which the court determines relief is proper “in its discretion and the interests of justice.” (See People v. Chandler, supra, 203 Cal.App.3d at p. 733, fn. 2, citing People v. Bulter (1980) 105 Cal.App. 3d 585, 587.) The court’s decision to grant or deny relief is discretionary in this third situation. (People v. Field, supra, 31 Cal.App.4th at p. 1786; People v. Bulter, supra, 105 Cal.App. 3d at p. 587.) Generally, the complaining party must establish “ ‘that the court exercised its discretion in an arbitrary, capricious or patently absurd manner …’ ” (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, quoting People v. Jordan (1986) 42 Cal.3d 308, 316; see also Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Put differently, an abuse of discretion occurs when an appellant can show that the lower court’s decision falls outside the bounds of reason. (See People v. Bradford (1997) 15 Cal.4th 1229, 1315; People v. Parmar (2001) 86 Cal.App.4th 781, 792.).

Florida Criminal Record Sealing

Record sealing under Florida law, says Darren Chaker, can occur if a person pleads guilty, nolo contendere or is found guilty by a jury but the sentencing judge withholds adjudication of guilt, there has been no conviction. See Fla.R.Evid. 90.610, FS. § 948.01; Delaney v. State, 190 So.2d 578 (1966), appeal dism’d 387. U.S. 426 (1967).

Moreover, when records relating to a person’s criminal history have been expunged/sealed, the person is restored to the status the person had before the criminal proceedings. See F.S. §948.01: Walley v. Florida Game & Fresh Water Fish Comm., 501 So.2d 671 (1st DCA 1987). The person’s status before charges were brought was that the person had not been convicted of the crime in question and therefore the expunged/sealed record would not be admissible. See Id.

To qualify to have a record expunged/sealed, requires that the person who, is the subject, must (1) never previously have been adjudicated guilty of a crime; (2) not have been adjudicated guilty of any charges stemming from the arrest to which the expungement/sealing petition pertains. Darren concludes if all records relating to a defendant’s case are sealed pursuant to Florida law, then the defendant may lawfully deny or fail to acknowledge the events covered by the sealed records. See F.S. § 943.058 (1991). Fla.R.Evid. 90.610 requires evidence that a person has been convicted of a crime to be admitted.

Only evidence of a criminal conviction is admissible; a witness may not be interrogated as to former arrest or other accusations of crimes. Questions regarding past criminal records or convictions should not be asked unless counsel has knowledge of a conviction and a certified copy of the judgment of conviction in counsel’s possession. A review of Florida court decisions hold that when a trial court withholds adjudication of guilt there is no conviction. See Roberts v. State of Florida, 450 So.2d 1126 (Fla. 4th DCA 1984); Accredited Surety and Casualty Company, Inc. v. State of Florida, 318 So.2d 554 (Fla. 1st DCA 1975); Bernhardt v. State, 288 So.2d 490 (Fla. 1974); State v. Gazda, 257 So.2d 242, 243 (Fla. 1971); Weathers v. State, 56 So.2d 536 (Fla. 1952); Daughtrey v. State, 35 So. 397 (Fla. 1903); Parker v. State, 563 So.2d 1130 (Fla.5th DCA 1990); Garron v. State, 528 So.2d 353 (Fla.1988); Duffell v. South Walton, 501 So.2d 1352 (Fla. 1st DCA 1986); Clinger v. State, 53 So.2d 315 (Fla.5th DCA 1988); and 14 Fla. Jur. 2d, Criminal Law 3(1979).