Legal Question in Criminal Law in California

24 years ago I was cited for shoplifting (petty Theft) in California, I had it dissmissed in 2007 but if I'm fingerprinted it will show up. Do I need to answer a background check Yes that I have been convicted of a misdomeaner if it has been dismissed?


Asked on 9/15/09, 10:24 pm

2 Answers from Attorneys

Robert Marshall Law Office of Robert L, Marshall

I am assuming you weren't just cited, but convicted. If you were not convicted, you do not have to disclose it (unless the background check is for a job as a police officer or for some other sort of government job requiring a security clearance AND you are told to disclose arrests, not just convictions).

Under Penal Code �1203.4, a person who is granted probation can apply to have the case dismissed after probation is complete. This is sometimes called an expungement, but it doesn't really expunge anything or seal your record. The conviction is still a part of the court's public records, which will also show the case was dismissed.

You still must disclose the conviction when applying to be a police officer or for certain other jobs, or if asked on an application for a state license or to run for public office. The conviction can still be considered a prior offense; for instance, your prior theft conviction could make any future petty theft a felony.

California Labor Code �432.7 says employers can't ask about any arrest that didn't result in a conviction, inquire about it from other sources or use it in a hiring decision.

Some attorneys interpret this Labor Code section to mean you don't have to disclose a conviction that was dismissed under Penal Code �1203.4, but I usually advise clients to disclose it, with an explanation that the conviction was subsequently dismissed.

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Answered on 9/16/09, 1:46 am
Terry A. Nelson Nelson & Lawless

IF that means you had it 'expunged' in 2007, then you get to say 'no' to convictions on most private employment applications. Your attorney should have explained all the rules and consequences to you.

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Answered on 9/16/09, 2:10 pm


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