Under Penal Code 1203.4, the grounds for a California expungement, when you get a criminal conviction expunged you are freed from “all penalties and liabilities of the offense.” What this primarily means is it improves your ability to find a better job.
The Difference Between a Felony Expungement and Misdemeanor Expungement
There really is no difference between a felony expungement and an expunged misdemeanor, in terms of the method of obtaining the expungement – both motions are made under California Penal Code 1203.4.
Prison Time Will Prevent a Felony Expungement
The main red flag for those interested in getting a felony conviction expunged is that you cannot get an expungement of a felony conviction in the case where you served time in prison (jail time would not prohibit you, however).
Getting a Felony Expungement May Take Longer
Another potential barrier to obtaining either a misdemeanor or felony expungement is being on probation. You cannot get an expungement motion granted until after you have completed probation, which for most misdemeanors is three years and for most felonies is five years.
Thus, depending on your particular sentencing from the judge (how long your probationary term is), you may have to wait longer to obtain a felony expungement versus a misdemeanor expungement.
Other Barriers to Either a Misdemeanor or Felony Expungement
Whether you are seeking a misdemeanor expungement or a felony expungement, there are a couple of other things that may present roadblocks.
Current Pending Offenses
The first is, you cannot get your conviction expunged in the case where you have other pending offenses. This means you cannot obtain an expungement of your felony or misdemeanor until all new pending cases have been resolved, and until you’re off of probation for those offenses.
Similarly, you cannot obtain an expungement if you are still on probation; however, you may be eligible for early termination of probation.
One other thing to be concerned with when obtaining a misdemeanor or felony expungement is your behavior during your probationary term for the conviction you desire to have expunged.
- When the Court Has Discretion: If you failed to comply with any terms of probation, and the court officially found you in violation of your probation, then an expungement becomes discretionary. A discretionary expungement means the court decides whether you’re entitled to an expungement in “the interests of justice.”
- When an Expungement is Mandatory: If you completed all terms of your probation without incident (no probation violations), then the Court must grant your expungement motion, assuming all other requirements have been met.
Felony Reduction to a Misdemeanor
In some cases, under Penal Code 17(b) or Prop 47, a felony can be reduced to a misdemeanor. This can be done even after you’ve already had your felony expunged.
One reason you may want to reduce a felony to a misdemeanor in addition to getting a felony expungement, is because a felony expungement cannot restore your gun rights. In California, any felony conviction will take away your right to own or possess a firearm.
A felony reduction to a misdemeanor will restore your gun rights under two conditions:
- in the case where a misdemeanor version of the offense wouldn’t also take away your gun rights, and
- as long as the basis for felony reduction was Penal Code 17(b) and not Prop 47 – Prop 47 reduction of your felony will not restore your gun rights!
Get Help with Your Felony Expungement or Misdemeanor Expungement
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