Criminal Record Cleaning: Los Angeles

August 6, 2022

If you have a criminal conviction, you have only limited opportunities to do something about it.

PENAL CODE 1203.4

Any person convicted of a crime and who was placed on probation can have his criminal case dismissed if he has successfully completed probation. This 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. Keep in mind that only offenses that could be alternatively charged as felonies or misdemeanors qualify for a reduction, and a “straight felony” 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.

DUI convictions are notable exceptions and they are granted only if the court agrees that the reduction and dismissal are in the interest of justice.

PENAL CODE 1018

Under California Penal Code section 1018 a defendant can withdraw his plea if he does it within 6 months of the sentencing. The court does not have to grant this motion and you should consult with a criminal defense attorney in Los Angeles prior to filing this motion. The motion must be granted for “good cause” only, which is a subjective standard that must be interpreted to benefit the defendant.

HABEAS CORPUS

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 probation expires and it has been more than 6 months after the sentence, you no longer can do anything to change your criminal conviction. The one exception to this rule is a newly created Penal Code section 1473.7, and Penal Code section 1016.5, which deals with a failure of the court to advise defendants of immigration consequences.

Penal Code 1473.7

Penal Code section 1473.7 was created in 2017 and modified in 2019 to address unfair criminal convictions. It is divided into 3 parts. 1st, convictions that are based on racial prejudice. 2nd, convictions where evidence of innocence was discovered. 3rd, convictions where a person is being deported because of that.

Here, I address only the last basis: convictions that can result in deportation.

A recent motion we have 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.

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 to use of 1473.7 for personal immigration consequences.

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