Written by attorney Richard Lawrence Duquette

San Diego Criminal Record Expungement

Do you have an old criminal matter, Petty theft, DUI, Domestic Violence, or Drug case that is still impacting your life?

Do you wish that your record could be cleared up with a San Diego Expungement?

It is possible that your old record (misdemeanors and yes, some felonies) can be expunged if certain criteria are met. Below are some general guidelines; however you should contact a qualified San Diego criminal defense lawyer regarding your matter.

The following flow chart is a general outline of the San Diego Expungement process in California. Since the laws are ever-changing, please consult with an experienced Oceanside criminal defense attorney. Also, see the NOLO PRESS book “Criminal Records" by Siegel.

  1. Was the client arrested or the accusatory pleading filed more than two years ago? IF YES, go to #5

IF NO, go on to the next question.

  1. Was the client arrested and released without charges being filed? IF YES, go to #4

IF NO, go on to the next question.

  1. Was the client arrested, charges were filed, but acquittal resulted or no conviction was obtained and the accusatory pleading was dismissed?


A) …and the accusatory pleading was dismissed, note that if the client is still before the court dismissing the action, a motion may be made pursuant to 851.8(e) for an order for sealing and destruction of the record of the arrest. Order can be obtained upon concurrence of the prosecuting counsel. 851.8(e). No finding of factual innocence is necessary. People v. Frank M.(1985, 1st Dist.) 163 Cal. App.3d 939, 944, 210 Cal. Rptr. 53. If the client has been released from the court’s jurisdiction, go to #3(c).

B) …an acquittal was obtained, and the client is still before the judge who presided at the trial, motion can be made to have the judge find the client factually innocent. 851.8(e). If granted, the relief set forth in 851.8(b) can be ordered. 851.8(e). If the client has been released from the court’s jurisdiction, go to #3(c).

C) A petition for 851.8 relief (on Dept. of Justice form) is to be filed with the court which dismissed the action, for a hearing to determine “factual innocence". 851.8(c). A copy of the petition is to be served on the local District Attorney at least 10 days prior to the date of the hearing. Id. Note that if the matter was dismissed “in the furtherance of justice", that has been found to not to be sufficient grounds for a finding of factual innocence. People v. Glimps(1979, 2d Dist.) 92 Cal. App.3d 315, 322, 155 Cal.Rptr.230. The hearing itself, and any relief to be given, shall be conducted as per 851.8(b). Id. Go to #4(c)(i).

IF NO, no relief under 851.8 is available. Go to #6

  1. Procedure for obtaining 851.8 relief (sealing and destruction of records):

A) Serve Petition (on Dept. of Justice form) on…

i) “the law enforcement agency having jurisdiction over the offense" for a determination that the person arrested is “factually innocent", and on

ii) the District Attorney. 851.8(a).

B) If the petition is denied, or if both the law enforcement agency and the DA fail to respond within 60 days, then go on to #4(c). If the petition is granted, then relief is to be provided as per 8518.8(a),(f),(h) & (j).

C) If the petition to the law enforcement agency is denied, then Petition must be made to the Municipal or Justice Court having territorial jurisdiction over the matter. 851.8(b)(i) Burden of proof is on the petitioner to show that “no reasonable cause exists to believe that the arrestee committed the offense…" 851.8(b); see People v. Matthews (1992, 2d Dist.) 7 Cal App. 4th 1052, 9 Cal

Rptr. 2d 348 and People v. Pogre (1986, Sta. Clara) 188 Cal App. 3d Supp. 1, 234, Cal. Rptr. 590.ii) If Petitioner meets the burden, then burden shifts to the respondent/People for rebuttal. 851.8(b).

D) If petition is granted, or if court finds factual innocence, then relief is granted according to 851.8(b), (f), and (j). NOTE, however, that if the client files a civil action against the officers or law enforcement jurisdiction which made the arrest, and "if the agency which is the custodian of such records has received a certified copy of the complaint", then sealed records will not be destroyed until after the civil action has been resolved. 851.8(k). Upon a showing of good cause, sealed records may be reopened and submitted into evidence by the court in the civil action. Id.

  1. Procedure for obtaining 851.8 relief if beyond the 2-year limitation period:

A) If the arrest or accusatory pleading took place more than 2 years ago, 851.8 relief is only available upon a waiver of the time limitation. 851.8(l)

i) The statute is silent as to whether this waiver can be granted by the law enforcement agency which would process the petition, or whether the court must be the authority to grant the waiver. See id. It is thus advisable to follow the procedure(s) outlined above for the client’s particular circumstance, with the addition of showing required for the waiver.

B) Good cause and no prejudice must be shown to support a waiver. 851.8(l)

i) Case law is sparse, but one case suggests, by negative example, that a person appearing in pro per may later successfully claim ignorance of the law as being good cause for waiving the 2-year term. See People v. Bermudez (1989, 1st Dist.) 215 Cal.App.3d 1126, 1230, 264 Cap. Rptr. 60 (petitioner made no showing of ignorance and no excuse for 4 of several more years of delay in seeking relief).

ii) Nothing on point regarding prejudice was found. Use general case authority regarding definition of prejudice.

C) If waiver granted, then the same authority can proceed to decide the petition. Go to #2.

  1. Has the client
  • fulfilled the conditions of probation for the entire probationary period, or
  • been discharged from probation prior to the end of the period, or
  • developed facts and circumstances which would arguably show him or her worthy of expungement “in the interests of justice", and
  • is not serving a sentence for, on probation for, or charged with committing any other offense?

IF YES, go to #7

IF NO, no expungement relief available.

  1. Procedure for obtaining 1203.4 relief (dismissal and release from [most] penalties and disabilities of the offense):

A) If the conviction is for a “wobbler", which may be considered either a felony or misdemeanor (according to whether the punishment is state prison or county jail, respectively), and it was charged as a felony or it is not clear from the court records, it is usually better to first have the wobbler reduced.

i) In the case of a "serious" or “violent" felony, reduction of the wobbler felony to a misdemeanor is important because of the effect of Three Strikes. See Erwin, et. al. 5 Cal Crim. Def. Prac. section 91.602.

ii) Otherwise, it appears reduction of a wobbler is important in allowing a person to deny the felony conviction in all situations but “the subsequent prosecution of the defendant of any other offense", and a “direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery". Section 1203.4(a). NOTE – the District Attorney may object to a reduction to a misdemeanor for lack of good reform or failure to seek immediate PC1203.4 relief. See People v. Banks (1959) 53 Cal.2d 370. Regardless, as a “matter of right" the felony should still be expunged per Penal Code 1203.4. See People v. Hawley(1991) 228 Cal.App. 3d. 247, 249-250.

iii) Include in the petition discussed below, a first, separate part to reduce the wobbler under 17(b)(3).

B) If plead guilty or Nolo Contendere, file petition

i) for leave to withdraw plea of guilty or Nolo Contendere,

ii) to have not guilty plea entered,

iii) to have the court dismiss the accusations or information against the client and

iv) to be released from all penalties and disabilities resulting from the offense for which the client was convicted. 1203.4(a)

C) If convicted on a not guilty plea, file petition

i) to have guilty verdict set aside, and

ii) to have the court dismiss the accusations or information against the client and

iii) to be released from all penalties and disabilities resulting from the offense for which the client was convicted. 1203.4(a)

D) Petition must be served on “prosecuting attorney" at least 15 days before hearing. 1203.4(d)

E) Client is required to reimburse the county and city for “actual costs of services rendered", not to exceed $120.00 each, regardless of whether the petition is granted. 1203.4(c)

F) For a discussion of what the “release from all penalties and disabilities" means, see Erwin, et al. 5 Cal. Crim. Def. Prac. section 103.02[1]c

By consulting and hiring an experienced criminal law attorney you may be able to have your San Diego Expungement case resolved quickly.

If you have criminal matter to discuss or would like to clear your criminal record, contact me HERE or give me a call: 760-730-0500. I offer a FREE no obligation consultation and look forward to helping you with your legal matter.

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Contact Law Firm of Richard L. Duquette for Free Consultation. Law Firm of Richard L. Duquette winning DUI, Drug, DMV, Juvenile, Military and Sex Crime cases since 1983. Located in Oceanside serving Carlsbad, Vista, San Marcos, Fallbrook, Escondido, and all San Diego, Riverside and Orange Counties.

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