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disabilities of the offense. The person:
(1) Cannot have his or her record sealed nor make it unavailable to the public; (2) May have a prior conviction pleaded and proved if he or she subsequently is prosecuted for another crime, including in a subsequent "Three Strikes" prosecution; (3) May not possess or own or have under his or her custody or control any firearm; (4) Must disclose the conviction in response to any direct question in a questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery; (5) May be subject to:
(a) Disbarment;
(b) Revocation of business and professional licenses;
(c) Suspension of a medical license by the Board of Medical Examiners;
(d) Suspension of a teaching credential by the State Board of Education;
(e) Registration requirements;
(f) Deportation; and
(g) Revocation, suspension, or limitation on the use of the person's driver's license after two or more Vehicle Code convictions.
Misdemeanants Not Granted Probation
Under Penal Code Section 1203.4a, every misdemeanant must be released from penalties and disabilities of an offense when, for one year from the date judgment is pronounced, he or she has fully complied with and performed the sentence, lived an honest and upright life, and conformed to and obeyed the law. The court must release the person even if he or she has committed a new crime after the one-year period. However, the person may not be serving a sentence for any other offense nor be charged with a new offense. Although no specific case law has arisen on the issue, it is probable that the petitioner has the burden of proving the required qualifications for expungement.
The defendant must be informed of the provisions allowing release at the time of sentence, either orally or in writing. The procedure is the same as that under Penal Code Section 1203.4: the plea or verdict is set aside, the case is dismissed, and the defendant is released from all penalties and disabilities of the offense.
Under Penal Code Section 1203.4a, a misdemeanant is not allowed to petition for a certificate of rehabilitation as is allowed under Penal Code Section 1203.4. Although this prohibition has been found to deny misdemeanants equal protection of the law, the statute has not been directly invalidated.
The effect of a release from the penalties and disabilities of a misdemeanor conviction is not entirely clear. Arguably, the effects are similar to those that occur with a release from conviction when the person has been granted probation because the two statutes are similarly worded. Furthermore, courts have made no attempt to distinguish the Penal Code statutes as they have Welfare and Institutions Code Sections 1179 and 1772, and instead have interpreted the statutes together. However, one apparent difference between the two Penal Code statutes is that a misdemeanant whose record has been expunged under Penal Code Section 1203.4 is prohibited from thereafter possessing or owning a firearm, 41 while a misdemeanant whose record has been expunged under Penal Code Section 1203.4a may possess or own a firearm except if the expungement is of a conviction for a violent offense.
The foregoing article was taken from CALIFORNIA CRIMINAL DEFENSE PRACTICE
(Matthew Bender 1999)
If you have questions or would like more information, please email us
at expungement@tylerlaw.com.
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