Legal Question in Criminal Law in California

Re: Pardons

Although many attorney advertise they can get your record "expunged." The truth is that they almost never can. And while you may hear about Pardons, they are extremely rare and difficult to obtain.

Pardons require first petitioning the Superior Court for a Certificate of Rehabilitation, where a Superior Court Judge is presented with information about your original offense. The District Attorney must be given notice of the petition and will do a background investigation on your present life and past history and submit it to the court. The DA can, and will, oppose the petition except in extremely unusual cases.

If the Judge grants the petition, then the case is forwarded to he Governor of California for consideration of a Pardon. The Governor then can use his own discretion.

As a practical matter, unless the original crime was very light weight, and unless you have been a shining citizen, and unless you have some political pull, a Pardon is not in the cards for most people. You can spend a considerable amount of time and money and wind up with nothing.

However,all hope is not lost.

If you were not sent to state prison, you are probably eligible to apply to have the old case re-opened and hopefully dismissed in the interest of justice under Penal Code Section 1203.4. If you successfully completed probation, have no new cases pending, and are not the subject of any investigation, you have a good chance of getting the 1203.4 petition to dismiss granted.

A 1203.4 dismissal does not really "expunge" your record. But it does cause your record to be changed to show the conviction was ultimately dismissed. You would then have the right to truthfully reply to any private party that you had never been convicted of the crime. (However, for purposes of state licenses and government applications and a few other categories, you would still have to say you were once convicted and later had the dismissal granted.) Furthermore, 1203.4 will not permit a felon to possess a firearm nor will it allow a sex offender to avoid registration. The cost of a 1203.4 are less than $140 to the court for filing fees, and if you retain an attorney, the costs should be for only a few hours of work to make sure all the record keeping is correct.

In extremely rare cases, where a person is not only found "not guilty" but proves to the court that he was "factually innocent" a person can get his case actually erased or "expunged." This Finding of Factual Innocence is like a reverse trial. It is very unusual and can be just as expensive and time consuming as a regular trial. If you plead guilty to a charge in the past this avenue is not open to you. It is only for people who essentially were arrested by mistake.

For juveniles, there is a vehicle for expungement even if you were convicted or plead guilty. The probation department has the forms.

Good Luck.

Richard Bonner

Richard Bonner & Associates

5140 Birch Street