Here, Los Angeles Criminal Defense Attorney discusses how to remove criminal convictions or arrests from your permanent criminal record.
Department of Justice in California (or Federal DOJ) compiles records of all arrests and convictions. This record can be requested by submitting fingerprints using “livescan”, which is a digital fingerprint system updating the fingerprints directly into the computer. Once the digital fingerprint is submitted to the DOJ, AFIS (automated fingerprint identification system) will match it to any record in California or Federal DOJ.
To verify or compare your criminal record, please submit your LifeScan to the DOJ. Once you have your criminal record, please contact Criminal Defense Attorney Los Angeles to help you remove or modify your criminal record from your RAP sheet.
PENAL CODE 1203.4 DISMISSAL
Any person convicted of a crime and who was placed on probation can have his criminal case dismissed if he has successfully completed probation. Los Angeles Criminal Defense Attorney and Los Angeles DUI Attorney will help you fill out the right paperwork and get a dismissal of your Criminal Case in Los Angeles or a Dismissal of your DUI case in Los Angeles. This type of criminal case dismissal used to be referred to as “expungement” and it is found in California Penal Code section 1203.4. If you were convicted of a felony and placed on felony probation that you successfully completed, you can, at the same time you are asking for “dismissal under Penal Code section 1203.4, ask for a reduction of your felony to a misdemeanor or from a misdemeanor to an infraction. Only “wobbler” offenses qualify for a reduction to misdemeanors. Wobblers are the type of crimes that can be charged as felonies or misdemeanors. Compare this to “straight felonies” which is a type of offense that is not eligible for a reduction to a misdemeanor. Both of these requests are done on a judicial counsel form and are routinely granted by the courts.
Many California offenses qualify for a reduction to misdemeanor simply because the probation is successfully completed. This is different from DUI convictions, which are the exceptions, and are granted only when the court agrees that the reduction and dismissal of your Los Angeles DUI are in the interest of justice.
SPECIAL VICTIM DISMISSAL OF CRIMINAL CASES
Dismissals under California Penal Code section 1203.4 are not the only dismissals under California Law. Under Penal Code 1203.45 a person can seal the conviction if he was a minor at the time of the offense and the offense does not require registration as a sex offender. Similarly, under California Penal Code 1203.49, a conviction under Penal Code 647(b) (solicitation for prostitution) can be removed from the record with a finding that a defendant is a victim of human trafficking.
PENAL CODE 1018 TO DISMISS YOUR CASE
Under California Penal Code section 1018, a defendant can ask the trial court to withdraw his guilty or no-contest plea. This motion has to be filed within 6 months of the sentencing. The Judge does not have to grant this motion under Penal Code 1018 unless there is a good cause and therefore you should consult with a criminal defense attorney in Los Angeles prior to filing this motion. The motion however must be granted for “good cause”, which is a subjective standard that must be interpreted to benefit the defendant. The motion under Penal Code 1018 to withdraw a guilty plea can be very tricky, so please call Los Angeles Criminal Defense Attorney to help you prepare this kind of motion. Because Penal Code 1018 motions give the trial court discretion, the review of a denial of such motion is an “abuse of discretion”, which is a difficult standard to meet for defendants on appeal.
If you are on probation or parole or in jail, you can petition the court to modify your sentence, withdraw your plea or do any other thing that you believe will help you achieve justice. The right to petition expires after you are no longer in the custody of the state (when you are on probation, you are considered in “constructive” custody of the state).
This means that after the probation expires and it has been more than 6 months after the sentence, you no longer can file a motion to change your criminal conviction record. The two exceptions to this rule are Penal Code section 1473.7, and Penal Code section 1016.5, both of which only concern immigration consequences and are not available to US Citizens. If you think you have a Habeas petition issue, just like in the case of a PC 1018 motion, it is better to consult with a Los Angeles Criminal Defense Attorney to win this case.
MOTION UNDER Penal Code 1473.7
California Penal Code section 1473.7 was passed into law in 2017 but then modified in 2019 to address unfairness in some criminal convictions. This law is divided into 3 parts. The first part addresses the convictions where your ability to understand or defend or accept immigration consequences were affected. The second part addresses those convictions where evidence of innocence was discovered. The third part addresses those convictions where a conviction was obtained as a result of racial or ethnic prejudice.
Here, I address only those convictions where the defendant’s ability to understand the immigration consequences was negatively affected – meaning, before pleading guilty you did not understand that you will lose your Greencard, could not become a U.S. Citizen, or could not be admitted to the US.
A recent motion under PC 1473.7 Los Angeles Criminal Defense Attorney has been working on involves a motion to withdraw the plea when a defendant was not told of his immigration consequences by his attorney when he plead guilty to a felony.
Under a recent case law of People v. Vivar, the Supreme Court held that the standard of review for PC 1473.7 is “independent review”, which is a much better standard than “abuse of discretion”, the standard used for PC 1018 motions. Thanks to Vivar, now the Appellate court can simply reverse the denial of the motion without must deference to the trial judge’s ruling except for “factual” findings. An independent review is thus different than a “de novo” review because factual findings can still be
EXPUNGEMENT WHEN PROBATION IS DENIED
What was known as expungement, or dismissal under Penal Code section 1203.4, used to be available as a benefit for someone who successfully completed probation. However, effective January 1, 2023, California Penal Code 1202.41 was amended to allow expungement to those who went to state prison or did state prison sentence in the county jail (under PC 1170(h).
A prison sentence served in the county jail can now be expunged under PC 1203.4, 1 year after completion of the sentence and after 2 years when the sentence was “state prison”.
A dismissal under Penal Code 1203.41 greatly improved the chances to get a better job or have other career advancements. Los Angeles Criminal Defense attorney and Los Angeles DUI attorney can help you get a dismissal of your case under California Penal Code 1203.41.
Adam Walsh Act
Federal Law prohibits certain persons from sponsoring an immigrant to become a US resident. This law is based on 2006 legislation that was passed to prevent violence against children. Adam Walsh Act mostly mimics California law requiring registration for sex offenders. However, the most unfortunate consequence of the Adam Walsh Act is that a US citizen (or resident) who has a certain conviction (usually involving a child molestation accusation) is unable to petition for a foreigner to become a US resident. In other words, if you have a registrable offense (such as a PC 288 conviction), you may not be able to petition for your spouse to immigrate to the US.
A recent decision by the California Court of Appeals held that a motion under Penal Code 1473.7 to clean a criminal record cannot be used by US Citizens when they are faced with “Adam Walsh” bars. This ruling is from People v. Gregor, an 8/12/22 decision by the court. The court only allowed using of 1473.7 for personal immigration consequences.
If you have specific questions concerning your Criminal Offense in Los Angeles, please call Criminal Defense Attorney Los Angeles.