Expungement offers individuals a way to clear their criminal records and move forward with a clean slate. In California, both misdemeanor and felony convictions can be expunged under certain conditions, but the process and requirements differ. Understanding these differences is essential for individuals seeking to remove the burdens of their past and restore their legal rights. As California’s leading expungement attorney, I’ll explain how misdemeanor and felony expungements differ, the legal processes involved, and what you can expect from each.

What is Expungement?

Expungement is a legal process that allows individuals convicted of certain crimes to have their convictions dismissed. Once expunged, a conviction is no longer part of your public criminal record, meaning that most potential employers, landlords, and the general public cannot see the conviction during background checks. However, it’s important to understand that an expunged conviction is not completely erased; it can still be accessed in certain circumstances, such as during government background checks or for sentencing in future cases.

The legal basis for expungement in California is found in California Penal Code § 1203.4, which outlines the eligibility criteria and procedures for obtaining expungement. The same statute governs both misdemeanor and felony expungements, but the process, requirements, and implications differ depending on the severity of the crime.

Misdemeanor Expungement

Misdemeanors are considered less severe offenses than felonies and typically carry lighter penalties such as fines, community service, or jail time of less than a year. In California, common misdemeanors include petty theft, DUI, public intoxication, and simple assault. Because of their less severe nature, misdemeanor expungement is often more straightforward than felony expungement, although it still requires meeting specific legal requirements.

Eligibility for Misdemeanor Expungement

To be eligible for misdemeanor expungement, you must meet the following criteria:

• Completion of Probation: You must have successfully completed all aspects of your probation, including any court-ordered programs, community service, or restitution payments.
• No Pending Criminal Charges: You must not have any pending criminal cases or be currently serving time for another offense.
• Full Compliance with Court Orders: You must have complied with all terms of your sentence, including payment of fines and attendance at mandated programs, such as DUI school.
• No New Convictions: You cannot have been convicted of any additional crimes during your probation or since the conclusion of your sentence.

If you meet these criteria, you are eligible to file for misdemeanor expungement.

The Misdemeanor Expungement Process

1. File a Petition: The first step in the misdemeanor expungement process is filing a petition for expungement with the court that handled your case. This petition requests that the court dismiss your conviction.
2. Court Review: The court will review your petition and may set a hearing to discuss the case. The judge will evaluate factors such as your behavior during probation, whether you fulfilled all court requirements, and whether granting expungement serves the interests of justice.
3. Court Decision: If the court grants the expungement, your conviction will be dismissed. From that point forward, you can legally state in most situations that you have not been convicted of the misdemeanor.

Felony Expungement

Felonies are more serious crimes that typically carry heavier penalties, including longer jail sentences or time in state prison. Common felonies include burglary, assault with a deadly weapon, drug trafficking, and grand theft. Because of the severity of these crimes, expunging a felony conviction is generally more complex than expunging a misdemeanor.

Eligibility for Felony Expungement

The eligibility requirements for felony expungement are similar to those for misdemeanors, but with a few key differences:

• Completion of Probation or Jail Time: Like misdemeanors, you must have completed all aspects of your probation or sentence. However, felonies involving state prison time are generally ineligible for expungement unless they fall under specific categories, such as those covered by Proposition 47 or Proposition 64, which allow for the reduction of certain felonies to misdemeanors.
• No Pending Charges: As with misdemeanors, you cannot have any pending charges or ongoing criminal cases.
• Felony Reduction: Some felonies may first need to be reduced to misdemeanors before they can be expunged. This is typically done under California Penal Code § 17(b), which allows certain felony convictions to be reclassified as misdemeanors if the crime was a “wobbler” (a crime that could be charged as either a felony or misdemeanor).

The Felony Expungement Process

The felony expungement process closely mirrors the process for misdemeanors, but it often involves additional steps due to the severity of the crime.

1. Reduction to Misdemeanor (if applicable): If your felony is a wobbler offense, you may first need to petition the court for a reduction to a misdemeanor before pursuing expungement. Once the felony is reduced, you can move forward with filing the expungement petition.
2. File a Petition for Expungement: After any necessary felony reduction, you will file a petition with the court for expungement under California Penal Code § 1203.4. The court will consider your compliance with probation and whether expungement is in the best interest of justice.
3. Court Review and Hearing: The court will review your petition and may hold a hearing. Felony expungements are often subject to more scrutiny than misdemeanors, particularly if the felony involved violence or harm to others. The judge will consider factors such as the severity of the crime, your behavior during probation, and your post-conviction rehabilitation.
4. Court Ruling: If the judge grants the expungement, your felony conviction will be dismissed. However, it’s important to note that even after expungement, the felony conviction can still be used against you in future criminal proceedings or for enhancing penalties for subsequent offenses.

Key Differences Between Misdemeanor and Felony Expungement

While the expungement process for both misdemeanors and felonies is governed by the same statute, there are several critical differences:

• Severity of Crime: Felonies are inherently more serious than misdemeanors, which means felony expungements often face more scrutiny. The nature of the crime, particularly if it involved violence or significant harm, can affect the court’s willingness to grant expungement.
• Felony Reduction Requirement: Unlike misdemeanors, some felonies must first be reduced to misdemeanors before expungement is possible. This extra step is not required for misdemeanor convictions.
• Court Scrutiny: Felony expungement petitions are typically reviewed more rigorously by the courts, especially in cases involving significant harm or public safety concerns. Misdemeanors are generally considered less severe, and expungement is more likely to be granted without extensive court hearings.
• Post-Expungement Impact: While expungement allows both misdemeanors and felonies to be dismissed from your public criminal record, the lingering effects of an expunged felony may still have more profound implications, especially in cases involving repeat offenses or certain professional licenses.

Limitations of Expungement for Both Misdemeanors and Felonies

It’s important to understand that expungement, whether for a misdemeanor or felony, has limitations:

• Government Jobs and Licensing: Even after expungement, you must disclose the conviction when applying for government jobs or professional licenses. Certain licensing boards may still consider the expunged conviction when evaluating your application.
• Immigration Consequences: Expungement does not erase a conviction for immigration purposes. Immigration authorities may still use the conviction in deportation or visa matters.
• Future Criminal Proceedings: An expunged conviction can still be used against you in future criminal cases. For example, if you are convicted of another crime, the expunged conviction can be used to enhance sentencing.

Legal Citations

• California Penal Code § 1203.4: Governs the process for expunging both misdemeanor and felony convictions.
• California Penal Code § 17(b): Allows for the reduction of certain felony convictions to misdemeanors, making them eligible for expungement.
• Proposition 47: Reduces specific nonviolent felonies to misdemeanors, allowing for expungement.
• Proposition 64: Provides for the reduction and expungement of certain marijuana-related felonies.

Expungement offers individuals a second chance by removing the burden of a past conviction from their public record. Whether your conviction is for a misdemeanor or a felony, navigating the expungement process is crucial for restoring your reputation, securing employment, and moving forward with your life. Working with an experienced attorney ensures that your case is handled properly and increases your chances of a successful outcome.