If you have asked yourself the question “Can a felony be expunged?”, you are probably concerned with one or more of the following goals:
- Applying to a university;
- Obtaining licensure for a job in California;
- Advancing in your job, or finding better employment;
- Restoring your gun rights; and/ or
- Removing the stigma of being a convicted “felon.”
At least, these are the most common goals communicated to me by my clients who seek an expungement and/or a reduction of their conviction from the level of felony down to a misdemeanor.
The good news is, a felony can be expunged and reduced to a misdemeanor – in some, but not in all circumstances.
What follows are 5 tips explaining when you are eligible for an expungement under California Penal Code 1203.4.
After those 5 tips regarding expunging your felony, I discuss reducing your felony to a misdemeanor.
#1 Can a Felony be Expunged if You Served Time in Prison?
Unfortunately, if you served time in prison, you are ineligible for a felony expungement.
However, even though prison time will exclude you from expungement eligibility, you may still be eligible for a governor’s pardon.
A governor’s pardon, if granted, would substantially restore your rights to pre-felon status.
#2 Can a Felony be Expunged No Matter What Type of Felony it Was?
No – there are certain felonies and misdemeanors that cannot be expunged, due to the harsh nature of the offense.
The types of felonies and misdemeanors that cannot be expunged are explicitly listed in Penal Code 1203.4, and include certain violent offenses as well as offenses involving sexual conduct with minors.
Common felonies that can be expunged include:
- Driving Under the Influence (DUI);
- Domestic Violence;
- Drug Possession;
- Theft and other Fraudulent Crimes.
#3 Can a Felony be Expunged if You Violated Probation?
If you were convicted of a felony but were sentenced by the judge to serve time in the county jail instead of in state prison, normally the Court will also place you on probation for 3-5 years.
Felony probation will begin upon completion of your jail sentence and may include requirements such as the payment of fines, random drug testing, therapy, educational courses, and routine check-ins with a probation officer.
A “probation violation” is a formal finding by the Court that you failed to comply with one or more of your probation requirements.
Punishment by the court for violating probation may include more fines, more probation time, or sentencing you to more incarceration time.
Violating probation does not render you ineligible for a felony expungement. However, it can make it more challenging to get your expungement motion granted.
This is because when you have violated probation, the Court has discretion to grant or deny your motion for expungement, based on the interests of justice.
This means you (or your attorney on your behalf) have the burden to prove to the Court that you are entitled to an expungement based on your rehabilitation, character, criminal record, and other such factors that have a bearing on public interest.
#4 Can a Felony be Expunged in Order to Restore Gun Rights?
No. Under Penal Code 12o3.4, the law explicitly states that an expungement – of either a misdemeanor or a felony – “does not permit a person to own, possess, or have in his or her custody or control any firearm…”
However: even though an expungement will not restore your gun rights, in some cases, a felony reduction will restore your gun rights, as discussed in the next section below.
#5 Can a Felony be Expunged in Order to Help with Future Employment?
Yes! Assuming you meet all eligibility requirements for a felony expungement, an expunged felony will substantially help you find better employment.
Penal Code 1203.4 specifically states that an expungement shall release you from all “penalties and liabilities” of the offense.
The main “penalty and liability” associated with a criminal conviction usually involves your ability to find gainful employment.
When your felony has been expunged, you can truthfully state to an employer that you do not have a criminal record.
An expungement won’t necessarily hide your criminal record from a background search, but it will clear it up to say “dismissed pursuant to Penal Code 1203.4.” This automatically protects you under California Labor Code 432.7, which prevents an employer from using evidence of an expunged conviction against you for any adverse purpose.
When Can a Felony be Reduced to a Misdemeanor?
A felony can be reduced to a misdemeanor in a few limited circumstances.
There are two main legal mechanisms to reduce a felony to a misdemeanor:
- Under Prop 47; and
- Under Penal Code 17(b).
Reducing a Felony Under Proposition 47
Prop 47 is California legislation enacted in November 2014, which re-classified certain felonies as misdemeanors.
A Prop 47 motion is a formal request to the court, which asks the court to reduce your felony conviction to a misdemeanor because your old conviction is now considered a misdemeanor under the law.
Prop 47 is in some ways more limited than a Penal Code 17(b) motion, and in other ways more expansive.
For example, a Prop 47 motion can be brought whether or not you served time in prison, and can in fact be brought while you are still serving time in prison in order to reduce your sentence (prison time will render you ineligible for a 17(b) motion, on the other hand).
A Prop 47 motion is not discretionary with the court, meaning that if you meet all requirements, the judge lacks discretion to grant or deny your motion and must grant your motion, assuming you meet the requirements.
Reducing a Felony Under Penal Code 17(b)
Relief under 17(b) is less expansive than Prop 47, in that:
- you cannot petition the court for relief if you served time in State prison for your conviction; and
- a 17(b) motion is discretionary with the court, which means the court can deny your motion if the judge feels you are unfit for relief.
On the other hand, if you are able to get a 17(b) motion granted, the effect of this felony reduction will restore your gun rights, as long as a misdemeanor version of the same offense also would not also take away your gun rights.
In sum, Prop 47 is easier to get (assuming your conviction is on the list of eligible offenses), but Prop 47 will not give you as much as 17(b) will (restoration of gun rights).
In either case – under either Prop 47 or 17(b) – your felony will be reduced to a misdemeanor and this will remove your status as a convicted felon and open up better opportunities for your employment and for your future.
Free Legal Consultation
The law of expungement and felony reduction is not cut and dried, and is confusing to many.
As an attorney who focuses my law practice on handling these types of motions, I can help remove the confusion and represent you in court to help you build the pathway to reaching your future goals and dreams.
You can reach me for a free consultation by clicking the button below.