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If I have been convicted in California for burglary and petty theft, can I get an expunction or certificate of rehabilitation?

Huntington Beach, CA |

It was 5 years ago. I have a family now, clean and sober. I have had a steady job at the same store since my release and have been asked to be manager since day one. If I have one infraction I am fired. Need help. When I was arrested for the burglary there wasn't any evidence, or money on my part to clear my name. With the petty theft, I hadn't even stepped out of the store with the merchandise. I pleaded to both guilty only because I was told I had no choice at that point.

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Attorney answers 5

Posted

California law pertaining to Certificates of Rehabilitation is complex and the procedure requires notice to the District Attorney and the opportunity for the prosecutor to oppose the application. In practical terms, it is strongly advised that any applicant for a Cert of Rehab utilize specifically experienced legal counsel. It is not at all clear from the facts you have briefly summarized here that you qualify for a Cert of Rehab. In all events, a Cert of Rehab is not a "follow-on" or companion procedure to a post-conviction dismissal under Penal Code section 1203.4. Many persons who can obtain a 1203.4 post-conviction dismissal (California's weak substitute for expungement) will not qualify for a CA Cert of Rehab.

Cal Pen Code § 4852.01 designates the requirements for application for Cert of Rehab including:
1) convicted of a felony AND sentenced to California State Prison.
2) released on completion of the term or on parole and no custody since then;
3) satisfactory evidence of five years residence in California before filing the petition.
The period of rehabilitation must constitute five years residence in California, plus an additional period depending on the crime for which the prison term was served.

As to both the Cert of Rehab and a post-conviction dismissal, the court's focus is not on the reasons for your prior plea, nor even the facts of those offenses. The court will make its determination based on your record since those convictions.

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John M. Kaman

John M. Kaman

Posted

Great answer but I would add that 1203.4 and a Cert. of Rehabilitation are mutually exclusive remedies. 1203.4 is for probationers who have done what was required of them. If you were sentenced to state prison you can't get 1203.4 relief. In that case the certificate is your only option.

Posted

An expungement is available for you and a cert of rehab afterward but is difficult to obtain. I suggest you consult a lawyer in your area for further specifics.

Contributions on AVVO.com in no way create an attorney-client relationship nor are they intended to be relied upon as a course of action without having first consulted directly with an attorney, where the specific facts and circumstances of your case can be fully discussed.

Posted

If you have satisfied all of the terms of your probation, including payment of any restitution that was owed, you may be eligible to have your convictions expunged pursuant to PC 1203.4. However, you will need to explain things in a bit more detail. I suggest that you consult with a locally experienced defense attorney. Most will offer a free consultation, and some will charge fair prices with reasonable payment plans. They will be in the best position to answer your questions. Hiring an attorney will give you the best chance. Good luck.

Jasen Nielsen

Posted

If you were sentenced to probation, you are eligible for mandatory expungement if you fulfilled all the terms and conditions of probation for the entire period, or were terminated early by the court. You also can't have any pending cases or serving a sentence, including probation. See California Penal Code Section 1203.4. You can only apply for a Certificate of Rehabilitation thereafter. If you pleaded guilty, the strength of the evidence does not matter. You accepted responsibility and guilt. But you are eligible for expungement.

Christine C McCall

Christine C McCall

Posted

California law does NOT provide for expungement in the sense of deletion, erasure, or making the existing record go away or become invisible. A Penal Code § 1203.4 remedy is a post-conviction dismissal and is effected by an additional notation of the post-conviction dismissal to the CA Dept of Justice and federal NCIC records -- not an excision of the prior entry of conviction(s).

Anthony Michael Solis

Anthony Michael Solis

Posted

Ms. McCall is correct. In fact, for many purposes "expungement" has little value. Following expungment, convictions may still be "priorable," they still show up on your driving record, they can still count for immigration purposes and still must be reported to licensing agencies and some employers. Best to seek counsel for more tailored answers to your needs.

Posted

The Certificate of Rehabilitation is only applicable if you have been sentenced to the State Prison. Expungement is the choice for those placed on probation and not sentenced to State Prison. If you were placed on probation, you may be able to get the case dismissed based upon successful completion of probation. Also, you may be able to get a felony reduced to a misdemeanor. You really need to consult an attorney since you have multiple charges and the final outcomes are not clear.

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