In most cases people who are convicted want to "erase" their record at some point in their life. I often get asked by former, current, and prospective clients how to "erase" their record. This question is posed for a variety of reasons, some simply want the embarrassment of there past to be destroyed, others, want it for employment reasons, while some are interested in getting there civil liberties restored.
There are a variety of options available to someone in the above position. The first step is to determine what the client's goal is, then the focus will switch to the prior convictions. A comprehensive examination of the client's conviction must take place. We would need to obtain the complete court file if possible. If there were any probation violations, those would need to be examined, we need to determine if the client was sent to prison, we would also need to examine the exact language of the sentencing as it may play a vital role in what can be achieved. Also, we would need to look at the facts of the case in order to determine what the judge and or D.A. would most likely do given the actual nature of the conviction. Additionally, we would take a comprehensive look into the client's current life. We would want to gather as many letters in support, also any certificates, degrees, and or awards that the client has obtained since the conviction.
Once all of the above material is obtained our office would file the appropriate motions. There are a number of different approaches that can take place, the first being a Penal Code 17b motion. A 17b motion can reduce certain felonies to misdemeanors , whereby, in some instances restoring a persons gun rights. In this approach, if the conviction is a "wobbler" meaning it can be charged either as a felony or misdemeanor and the individual was not sentenced to state prison and or the sentenced was not stayed then the person can request that the case be reduced. In other situations, the individual may be eligible for a prop 47 reduction. Recently, California voters approved new legislation making certain not violent felonies misdemeanors. In this scenario we would determine if your charge is eligible, and if it was we would motion the court for a reduction.
Another tool we have is a Penal Code 1203.4 motion, whereas, if the person successfully completed probation we would motion the court to dismiss the charges. In this scenario the dismissal acts like an expungement. This method of "clearing" up your record is usually favored especially if we can obtain a 17b reduction prior to the dismissal. Again, a comprehensive examination of the charge, sentence, and probation is vital in order to determine a persons eligibility. Additionally, even if a person did not successfully complete probation an expungment may still be possible if the court deems it would be in the interests of justice. The interests of justice has no clear criteria, however, it is safe to say that a person wanting relief in this manner must demonstrate to the court that they have fully removed themselves from their past.
If an individual is not eligible for any of the above then we would work towards a certificate of rehabilitation. A certificate of rehabilitation is for specified misdemeanors and for those individuals who either went to prison or who were placed on probation with a suspended sentence. In this scenario, we would write a motion to the court, again, attaching all important documents, and we would essentially be asking the court to say that you are "rehabilitated." If the court grants it then a small amount of benefit is incurred on the client, however, the real reason we would do a certificate of rehabilitation is to set the client up for a Governor pardon.
A pardon under many circumstances will fully restore a persons civil liberties, again the actual charge will play a key role in this. A pardon, although sounding like an impossible task is not. In many situations a person can demonstrate significant growth from the time of the convictions. In this situation, the more time that has elapsed from the conviction the better, as the Governor may want to see a lengthy period of good behavior.
The above in no way represents a comprehensive examination of the possible legal scenarios that a person may be granted relief. As you can tell, the law surrounding this area is extensive and is far more complicated than what this blog represents. Unfortunately, not all criminal defense attorney's have the knowledge and experience to navigate their clients through these laws. If you are searching for an experienced attorney that understands this area of law then call Adam Rodriguez for a free consultation.