How does an Expungement work?

What It Is, How It Works, and What It Actually Does

In California, “expungement” usually refers to relief under Penal Code §1203.4 (and related sections). It allows a person who successfully completed probation to withdraw a previous plea of guilty or no contest and have the case dismissed.

It does not erase the arrest.

It does not seal the entire government file.

It does not eliminate the conviction for all purposes.

It does change how the case appears on most background checks and can materially improve employment prospects. It allows for a person to lawfully assert that they were not convicted of the case (in most circumstances)

The Governing Statutes

Primary expungement statutes include:

Penal Code §1203.4

Relief after probation

Penal Code §1203.4a

Relief in cases without probation

Penal Code §1203.41

Relief after county jail sentence under §1170(h)

Penal Code §1203.425

Mandatory relief in qualifying cases (recent reform)

Separate but related record-clearing statutes include:

Penal Code §851.8

Factual innocence

Penal Code §851.87

Sealing arrests not resulting in conviction

Penal Code §851.91

Sealing certain convictions

Each serves a different purpose.

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What an Expungement Under §1203.4 Actually Does

When granted, the court:

  1. Allows withdrawal of the guilty or no contest plea
  2. Enters a not guilty plea
  3. Dismisses the case

The record will typically reflect:

“Conviction dismissed pursuant to Penal Code §1203.4.”

This can allow a person to legally answer “no” to most private employment conviction questions, with exceptions (law enforcement, political office, immigration hearings, etc.).

What an Expungement Does NOT Do

Expungement does not:

  • Erase the case from court databases
  • Seal the entire file
  • Remove the arrest from law enforcement systems
  • Restore firearm rights (if lost)
  • Eliminate strike priors
  • Prevent use of the conviction in future prosecutions
  • Prevent immigration consequences

It does not destroy the record. It modifies its status. Importantly, it does not remove the government record (the government will see the entire history of every case). The case remains in court and law enforcement databases.

It primarily affects how the conviction appears in Department of Justice background checks used for employment and licensing purposes.

Eligibility for Expungement

Eligibility depends on:

  • Successful completion of probation
  • No current charges pending
  • Not currently serving a sentence
  • Compliance with court-ordered conditions

Relief is generally available for:

  • Most misdemeanors
  • Many felonies
  • Certain felony cases reduced to misdemeanors

Some offenses (such as certain violent felonies, sex offenses, or prison sentences) are excluded from this possibility.

Different Types of Expungement Relief

1. Standard Expungement – Penal Code §1203.4

Available when probation was granted and successfully completed.

Applies to:

  • Misdemeanors
  • Some felonies

2. Expungement After Jail (No Probation) – §1203.4a

Applies when:

  • No probation was granted
  • Sentence was fully completed
  • 1 year has passed

3. Expungement After Realignment Sentences – §1203.41

Applies to:

  • Certain felony sentences served in county jail under §1170(h)
  • Historically, a person sentenced to state prison is ineligible to get the conviction expunged. HOWEVER, because the law changed in 2012, some of those prison sentences could have been county jail sentences instead of prison. If we can show that the prior prison case could have been a county jail sentence instead–we can make the conviction expungeable in many cases.

4. Mandatory Relief – §1203.425

Recent reforms made expungement mandatory in qualifying cases when probation was successfully completed and statutory criteria are met.

Expungement vs. Record Sealing

Expungement

  • Changes conviction status to dismissed
  • Record still visible in court databases
  • DOJ record reflects dismissal
  • Law enforcement retains full file

Record Sealing

Record sealing under statutes such as Penal Code §§851.87 and 851.91 can:

  • Remove public access to the record
  • Seal the arrest or conviction in certain circumstances
  • Prevent most employers from seeing it
  • Provide stronger privacy protection

Arrests Without Conviction – §851.87

If a case:

  • Was rejected
  • Was dismissed
  • Resulted in acquittal

The person may be eligible to have the arrest sealed.

This is separate from expungement and often more powerful.

How Expungement Helps in the Future

While limited, expungement can materially assist with:

  • Employment applications
  • Professional licensing
  • State licensing boards
  • Housing applications
  • Background checks
  • Personal reputation

Many private employers rely on DOJ background checks that reflect dismissal status.

However:

  • Government agencies may still see the original conviction
  • It must still be disclosed in certain licensing and public employment contexts
  • It can still count as a prior conviction if you are subject to future prosecutions

Immigration and Federal Limitations

Expungement under §1203.4 does not eliminate immigration consequences. Federal authorities may still treat the conviction as valid.

This is a critical distinction.

The Expungement Process

The process typically involves:

  1. Filing a petition in the court of conviction
  2. Providing proof of eligibility; serving notice upon the department of probation and district attorney’s office
  3. Addressing outstanding fines or restitution
  4. Hearing in open court before the judge with jurisdiction over the case
  5. Court order granting relief

Processing times vary by county.

Timing Considerations

You may petition:

  • After probation is completed
  • In some cases, early termination of probation may allow earlier relief

Strategic timing matters if:

  • Licensing is pending
  • A background check is upcoming
  • A job offer is contingent

Common Misconceptions

“Expungement erases my record.”

  • It does not erase it; it dismisses the conviction.

“It restores my gun rights.”

  • It does not.

“It hides the case from the government.”

  • It does not.

“It is automatic.”

  • It is not. A petition must be filed.

Bottom Line

Expungement under Penal Code §1203.4 and related statutes is a powerful but limited tool.

It:

  • Changes the status of a conviction
  • Improves employment prospects
  • Signals rehabilitation
  • Does not erase the government record
  • Does not seal the case
  • Does not eliminate all consequences

Understanding the difference between expungement and record sealing is critical when planning long-term relief.

Next Step

If you or a family member is seeking expungement or record relief under Penal Code §§1203.4, 1203.4a, 1203.41, 851.87, or related statutes in California — and you want a review of eligibility, limitations, and strategic timing — you can send your information to me here:

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