My partners and I focus our practice on representing California professional and occupational State license-holders. Many -- perhaps most -- of our clients are involved in a legal matter affecting a State license because of a prior criminal conviction. Many of our clients are shocked to find that their prior criminal conviction has put their occupational license, certificate, or teaching credential in legal jeopardy because, as they tell me: "My conviction was expunged." Well, no it wasn't. And never will be. California law does not provide for "expungement." Here are the facts:
Black's Law Dictionary defines "expungement of record" as the "process by which record of criminal conviction is destroyed or sealed from the state or Federal repository." But California law offers something decidely different and much less absolute. Penal Code Section 1203.4 allows a person with a criminal conviction to petition for relief from the conviction. If the Petition is granted by the court (and that depends on a number of variables and eligibility standards not addressed in this Legal Guide), an Order of Dismissal will issue.
Once the Order of Dismissal is provided to the criminal records reporting agencies, a new additional entry will be made to the official permanent criminal record of the successful petitioner, reciting the fact of the dismissal. That's it. That is all that happens upon the successful utilization of P.C. 1203.4. The old conviction is not removed, erased, deleted, obliterated, excised, stricken, crossed-out, replaced, destroyed, sealed, or otherwise "expunged" as both a "regular" dictionary and the law dictionary define that term. The Order of Dismissal and its instructions to the criminal records reporting entities does not use (or even contain) the word "expungement." The statute does not use the word "expungement." In hearing and considering the P.C. 1203.4 Petition, the court will not use the term "expungement."
So why does the myth of expungement persist? And does it matter, if we all know what we are talking about? The sad and regrettable fact is that the term "expungement" lives on because of bad attorney habits. The casual and generic use of the term "expungement" unfortunately leads a lot of California lay persons to expect more than the law allows.
The fact that the remedy offered by California is not what many expect does not mean that the post-conviction dismissal available under P.C. 1203.4 should not be obtained when a person with a criminal record is eligible. To the contrary, there are a number of advantages -- primarily in the employment context -- to adding the fact of dismissal to the criminal record. But lawyers do no one any benefit if by our trade shorthand we implicitly promise more than can be delivered to a client eligible for post-conviction relief under California statutes. And clients can only err to their own detriment if they mistakenly believe that the criminal record has disappeared via "expungement."
In California, no one's conviction has been "expunged."