FAQ: Guide to California Expungement from Experienced Indio Expungement Attorney

FAQ Overview: Your Path to Expungement Depends on the Type of Sentence

Imagine this: a second chance, a fresh start, a life no longer weighed down by a past mistake. That’s what expungement offers—a legal lifeline that wipes the slate clean, allowing you to walk into a room and say, "No, I was never convicted." Even if you were sentenced to state prison. It's not just a technicality, it’s a reclaiming of your future, especially when it comes to applying for a job, renting an apartment, or simply living without the shadow of a criminal record hanging over you. But let’s be clear: it’s not an absolute erasure. Law enforcement and certain agencies might still have access to your history. But in Indio, a successful expungement is your right to withdraw your plea or set aside that conviction, if you’re eligible—giving you the power to leave the past where it belongs and move forward with your life.

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***This is general information relating to California Penal Code section 1203.4 and California Penal Code section 17, subsection (b) motions. For legal advice specific to your situation, consult with an attorney***

By attorney Joshua Mulligan. Mr. Mulligan has handled hundreds of expungement and other post-conviction matters. Mr. Mulligan is a State Bar Certified Criminal Law Specialist and his practice is in the Coachella Valley. Mr. Mulligan’s office is in La Quinta and his practice most of his cases are at the Larson Justice Center in Indio, California

Experienced Indio Expungement and Records Sealing Lawyer

Expungement

Imagine this: a second chance, a fresh start, a life no longer weighed down by a past mistake and a future in Indio. That’s what expungement offers—a legal lifeline that wipes the slate clean, allowing you to walk into a room and say, "No, I was never convicted." Even if you were sentenced to state prison. It's not just a technicality, it’s a reclaiming of your future, especially when it comes to applying for a job, renting an apartment, or simply living without the shadow of a criminal record hanging over you. But let’s be clear: it’s not an absolute erasure. Law enforcement and certain agencies might still have access to your history. But in Indio, a successful expungement is your right to withdraw your plea or set aside that conviction, if you’re eligible—giving you the power to leave the past where it belongs and move forward with your life.

Under California Penal Code 1203.4, those convicted of a felony or misdemeanor have the opportunity to petition for the dismissal or expungement of their conviction—but only after they've successfully completed their probation. If you've met all your obligations and are no longer on probation, you may be eligible for this relief. It’s a powerful tool for a fresh start, but it’s not a full clean slate. While it can remove the conviction from most public records, it doesn't completely erase it, and certain rights—like the right to possess firearms—may not be restored, especially for felony convictions. Nonetheless, it's a step in the right direction toward reclaiming your future in Indio and other parts of the Coachella Valley.

Key Eligibility for PC 1203.4:

  • Completion of probation conditions.

  • No new criminal charges or active probation/parole.

  • Felony convictions are eligible only if the sentence did not involve state prison. California Penal Code section 17(b) California Penal Code Section allows a court to reduce a wobbler offense (a crime that can be charged as either a felony or a misdemeanor) to a misdemeanor if the defendant is sentenced to probation or if the court determines a misdemeanor classification is appropriate.

  • Misdemeanors are also eligible, even if county jail time was served.

Forms Needed to File for PC 1203.4:

  • Petition for Dismissal (CR-180). This form officially notifies the court upon filing of the relief you are requesting. Once filed with the court, a hearing date will be provided.

  • Order for Dismissal (CR-181). This form must be attached to the petition when you file it with the court. At the hearing, the Judge will fill the form out and provide you with a copy.

  • Proof of Service (CR-106): This forms is proof that the District Attorney was given notice about the relief you are requesting. A person other than yourself who is 18 years old or older must serve your petition on the District Attorney at least five days before the court hearing. The form then must be filled out by them and signed. Lastly, the form must be filed with the court before your hearing.

  • Supporting Documents: These are documents that will support your request for relief and should be attached to the petition when you file it with the court.

  • Yes, but only if the individual was not sentenced to state prison. Felony convictions that involved county jail time or probation may be eligible for expungement.

  • You must have completed probation before a judge can dismiss the case.

    That said, you can apply for early termination of probation. If you want to go this route you should have a good reason why you need the early termination. One common reason judges grant early termination is that an individual has a pending job offer, but needs be off probation before starting the job.

  • You must file a petition with the court that handled your case, showing that you have completed all sentence requirements. The court will review the case, and if eligible, may grant the expungement.

  • No, expungement is not automatic. You must petition the court, and the judge will decide if you meet the eligibility requirements.

  • No, while it may allow you to deny the conviction on most applications, it does not remove all legal consequences, such as certain legal restrictions or the ability of the conviction to be used in future prosecutions.

  • While both allow for the dismissal or expungement of a conviction, PC 1203.4 is for individuals who have completed their sentence and have no prison sentence, while PC 1203.41 specifically applies to individuals who were sentenced to state prison but later had their felony reduced to a misdemeanor.

  • No, expungement under PC 1203.4 does not restore rights like firearm possession for felony convictions.

Expungement After a Prison Sentence: Penal Code section 1203.41

California Penal Code 1203.41 provides relief for people who served a term in state prison. This new law was only passed in 2023 - you may see older sources indicating no expungement after prison. This is wrong - only rely on sources published since 2023.

Key Points for PC 1203.41:

  • The dismissal will only be granted “in the interests of justice” - this effectively means that the judge will only grant the expungement if he or she thinks that you deserve the dismissal.

  • Available after completing sentence (1-2 years depending on the case).

  • Not available for convictions requiring sex offender registration.

  • Relief subject to conditions, such as the conviction still being usable in future prosecutions.

  • Does not restore rights like firearm possession.

In summary, both codes provide a chance to clear a criminal record under certain conditions, but they do not remove all legal consequences or restrictions.

Forms Needed to File for PC 1203.41:

  • Petition for Dismissal (CR-180). This form officially notifies the court upon filing of the relief you are requesting. Once filed with the court, a hearing date will be provided.

  • Order for Dismissal (CR-181). This form must be attached to the petition when you file it with the court. At the hearing, the Judge will fill the form out and provide you with a copy.

  • Proof of Service (CR-106): This forms is proof that the District Attorney was given notice about the relief you are requesting. A person other than yourself who is 18 years old or older must serve your petition on the District Attorney at least five days before the court hearing. The form then must be filled out by them and signed. Lastly, the form must be filed with the court before your hearing.

  • Supporting Documents: These are documents that will support your request for relief and should be attached to the petition when you file it with the court.

  • You must have completed your sentence and waited at least one or two years, depending on the specifics of your case, before filing a petition.

  • If your petition is granted, the felony conviction is dismissed, and it will not appear on most background checks, but it may still be accessible to law enforcement. However, the conviction can be used in future prosecutions.

  • No, PC 1203.41 does not restore rights like the right to possess firearms or eligibility for public office if these rights were restricted due to the felony conviction.

  • While both allow for the dismissal or expungement of a conviction, PC 1203.4 is for individuals who have completed their sentence and have no prison sentence, while PC 1203.41 specifically applies to individuals who were sentenced to state prison but later had their felony reduced to a misdemeanor.

  • No, you must have completed your sentence, including probation or parole, and have no pending criminal charges before applying for relief under PC 1203.41.

  • For most employment and housing background checks, your record will come up clean after the dismissal.

    However, although the conviction is dismissed, you are required to disclose it in certain situations, such as when applying for public office, employment as a peace officer, or certain professional licenses, if required by law.

Sealing of Criminal Records

Sealing a criminal record means that the record is hidden from public view and is only available to certain authorized individuals or agencies (like law enforcement). It doesn’t erase the record but makes it inaccessible to the public. A sealed record is not visible on background checks for employment or housing purposes, making it easier for the individual to move on with their life. However, the conviction still exists, and in some cases, law enforcement can still access it for certain legal purposes.

If you’re in Indio and seeking to seal your record, our experienced attorneys at Wilkerson & Mulligan are here to help you navigate the process and take the steps necessary to regain your peace of mind and future. Let us guide you through securing the fresh start you deserve.

California Penal Code section 851.91 allows individuals who were arrested but not convicted of a crime to petition the court to seal their arrest and related records. This provision applies under certain conditions, such as when the statute of limitations has expired, or if the charges were dismissed, the individual was acquitted, or a conviction was reversed on appeal.

Key points of PC 851.91:

  • Eligibility: A person must not be facing new charges related to the arrest, and the arrest cannot involve serious crimes like murder or offenses without a statute of limitations.

  • Petition Process: The individual must file a petition that includes detailed information about the arrest and the circumstances surrounding it. In the Coachella valley, the petition is filed at the Larson Justice Center in Indio.

  • Court's Decision: The court considers whether sealing the arrest record serves the interests of justice, such as the hardship the arrest caused to the individual.

  • Outcome: If the petition is granted, the arrest is sealed, meaning it is treated as if it never occurred for most purposes, although the individual may still be required to disclose it in certain situations, such as public office applications or peace officer employment.

Forms Needed to File for PC 851.91:

  • Petition to Seal Arrest and Related Records (CR-409). This form officially notifies the court upon filing of the relief you are requesting. Once filed with the court, a hearing date will be provided.

  • Order to Seal Arrest and Related Records (CR-410). This form must be attached to the petition when you file it with the court. At the hearing, the Judge will fill the form out and provide you with a copy.

  • Proof of Service (CR-106): This forms is proof that the District Attorney was given notice about the relief you are requesting. A person other than yourself who is 18 years old or older must serve your petition on the District Attorney at least five days before the court hearing. The form then must be filled out by them and signed. Lastly, the form must be filed with the court before your hearing.

  • Supporting Documents: These are documents that will support your request for relief and should be attached to the petition when you file it with the court.

  • You must not be facing any new charges related to the arrest, and you cannot have been involved in certain serious crimes. Additionally, the arrest record must meet specific criteria, such as being based on charges that were dismissed, acquitted, or reversed.

    1. File a Petition to Seal Arrest and Related Records, an Order to Seal Arrest and Related Records, and include all evidence that will support your petition with the Court that has jurisdiction. In the Coachella Valley, the Larson Justice Center is where the documents would be filed.

    2. Serving the petition on the arresting agency and District Attorney.

    3. File a proof of service with the Court.

    4. Attending the court hearing.

  • Yes, even if your record is sealed, it can still be used in future prosecutions, for firearm-related matters, or for specific situations like applying for public office, law enforcement positions, or certain licenses.

  • You must disclose your sealed arrest record in specific situations, such as when applying for public office, jobs as a peace officer, or certain state or local agency licenses.

Pre-File Diversion

Penal Code section 851.87 allows individuals who are accused of committing a crime to avoid formal charges and prosecution by participating in a diversion program before charges are officially filed against them. The goal is to offer an alternative to the traditional criminal justice process, focusing on rehabilitation rather than punishment.

Key points of PC 851.87:

  • Eligibility: Generally, pre-file diversion is available to individuals accused of low-level offenses, especially first-time offenders or those with limited criminal history.

  • Process: Before charges are filed, the prosecutor may agree to divert the case into a program that could involve counseling, community service, or other rehabilitative efforts.

  • Outcome: If the individual successfully completes the diversion program, the case is typically dismissed, and no criminal record is created. This helps the person avoid the consequences of a criminal conviction, such as jail time or a permanent criminal record.

  • Not Available for Serious Crimes: Pre-file diversion is usually not an option for individuals accused of serious crimes or violent offenses.

It’s essentially an opportunity for a person to resolve a legal issue without the burden of formal criminal charges, which can be a helpful second chance for certain individuals.

Destruction of Criminal Records

California Penal Code 851.8 provides a process for individuals who have been arrested to petition the court to determine that they are factually innocent of the charges. If the court finds that the individual is factually innocent, the arrest record is destroyed, and they are relieved of any consequences stemming from the arrest.

If you’re in Indio and believe you are factually innocent, our skilled attorneys at Wilkerson & Mulligan can help guide you through the process to clear your name. We’re here to ensure that you can move forward without the burden of an arrest record holding you back.

Key points of Penal Code section 851.8:

  • Eligibility: The individual must demonstrate they are factually innocent of the crime for which they were arrested. This can be done by showing that the evidence does not support the arrest or that no criminal offense was committed.

  • Process: The person must file a petition to seal and destroy arrest record with the court to declare their factual innocence after they serve the arresting agency and District Attorney a petition to seal and destroy adult arrest record. A hearing will be held where the person can present evidence to support their claim.

  • Court Decision: If the court rules in the person’s favor and finds them factually innocent, the arrest record is destroyed, and the person is relieved of all consequences related to the arrest.

  • Effect: The arrest record is treated as though it never occurred, which means the person can legally deny the arrest when asked about it, and it will not show up on most background checks.

Forms Needed to File for PC 851.8:

  • Petition to Seal and Destroy Adult Arrest Record (BCIA 8270): This form must be served on the arresting agency and District Attorney prior to filing a petition in the court that has jurisdiction over the arrest.

  • Petition to Seal and Destroy Arrest Records (RI-OTS48): This form serves as official notice to the court of the relief you are requesting. Once filed, a hearing date will be scheduled. This form, along with the form mentioned above, must be submitted to the court with jurisdiction over the arrest if the petition is denied by the arresting agency and District Attorney at the time it is filed.

  • Order to Seal and Destroy Arrest Records (RI-OTS49): This forms must be attached to the petition that is filed with the court having jurisdiction over the arrest. At the hearing, the Judge will fill the form out and provide you with a copy.

  • Proof of Service (CR-106): This forms is proof that the District Attorney and arresting agency were given notice about the relief you are requesting. A person other than yourself who is 18 years old or older must serve your petition on the District Attorney and arresting agency before the court hearing. The form then must be filled out by them and signed. Lastly, the form must be filed with the court before your hearing.

  • Supporting Documents: Attached all documents in support of your petition that is filed with the court having jurisdiction over the arrest.

  • “Factual innocence” means that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.

  • You are eligible if you were arrested and the District Attorney did not files charges against you, the District Attorney filed charges against you but you were not convicted, or you have been acquitted of the charges you were arrested for.

    • Serve a Petition to Seal and Destroy Arrest Records on the arresting agency and District Attorney of the county or city having jurisdiction over the offense, include any evidence that will support your petition. (if the petition is granted, no further action is necessary for this specific petition.)

    • If the petition is denied or 60 days passed from the date the petition was served, then you must file a Petition to Seal and Destroy Arrest Records,  an Order to Seal and Destroy Arrest Records, and include a copy of the original petition that was first served on the arresting agency and District Attorney showing it was denied or proof that 60 days has passed with the Court that has jurisdiction over the offense, in the Coachella Valley you will file it at the Larson Justice Center. It is recommended that you submit supporting documents with your petition.

    • Serve the arresting agency and District Attorney the petition you filed with the court.

    • File a Proof of Service with the court.

    • Attend the court hearing.

  • You will need to present evidence that shows you were not involved in the crime or that no crime occurred. This may include witness statements, physical evidence, or any documentation supporting your innocence.