Long Beach Criminal Defense Attorney

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Long Beach Criminal Defense Attorney

Expungments: Cleansing Criminal Records

There are things that can be done to clean up a criminal record. In some instances, even the record of arrest can be sealed. Long Beach criminal attorney, Matthew Kaestner, has extensive experience helping clients to erase convictions for murder, assault, criminal threats and other crimes. Mr. Kaestner has helped clients obtain reductions and dismissals of felony and misdemeanor convictions. He has handled Proposition 47 matters. He has assisted innocent clients to obtain judicial findings of factual innocence.

Questions about cleansing an arrest or conviction can be directed to Long Beach's criminal law specialist, Matthew Kaestner directly at (562) 437-0200. Mr. Kaestner has over 30 years of experience defending clients who are caught up in the criminal justice system.

The following is a brief review, prepared by Long Beach criminal attoreny Matthew Kaestner describing the various legal avenues to obtain relief from past criminal convictions.

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"Expungement" is probably not an accurate way to describe the most common way to legally seek the dismissal of a criminal conviction in California. Unfortunately, as is the case with almost anything in life, it is not possible to completely undo the past. The internet has made it all the more difficult to remove from the public domain all record of a criminal conviction in many instances. Companies that search court records and sell the information for a price are popular. Therefore, it is difficult, and often impossible to remove records that show a criminal prosecution of an adult.

Nonetheless, there are numerous ways to minimize if not completely erase the legal consequences of a criminal conviction. The most complete way to eliminate and erase even an arrest records is to obtain a judicial finding of factual innocence.

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A judicial finding of factual innocence is exactly what the name implies. Obtaining this relief requires the filing of a legal motion requesting a judge determine that someone who was prosecuted or just arrested was completely innocent. If a petition to the court for a finding of factual innocence is granted, all records of the arrest and conviction, must be sealed. Both the local police agency that made the arrest and the California Department of Justice must seal their records. Three years after the sealing, the records are required to be destroyed. Even the arrest itself is deemed not to have occurred.

A judicial finding of factual innocence can be sought by:

  1. Persons who were arrested but not prosecuted (D.A. reject);
  2. Persons who were charged with a crime but later had their case dismissed; or
  3. Persons who were acquitted (found "not guilty") after a trial.

A judicial finding of factual innocence is available pursuant to statute. The procedures to follow are outlined in Penal Code section 851.8. A person who has been arrested or prosecuted has two years to file the petition after the arrest or prosecution, whichever came later. A court can, for good cause, allow a petition after the expiration of the two years.

If the arrest did not result in a prosecution, the arrested party needs to petition the arresting agency and the local prosecutor. If the police and prosecutor deny the petition, a petition can be filed with the court where the case would have been heard if a case was filed. The court may require the statute of limitations to expire before granting the petition.

If the person arrested was prosecuted but the case is later dismissed or results in an acquittal, the court can grant the petition at the time of the dismissal if the prosecutor agrees. Without the prosecutor's consent, a petition can be filed with the judge who heard the case.

A petition for a finding of factual innocence cannot be denied unless there is a court hearing. At the time of the hearing the person seeking to have the petition granted must prove that "no person of ordinary care and prudence would believe... that the person arrested or acquitted is guilty." If the judge denies the petition, the ruling may be challenged on appeal if the petition was denied without good cause. (People v. Laiwala (2006) 1434 CA4th 1065.)

A judicial finding of factual innocence is not easy to obtain, but is the only way for a person who was arrested or charged, but not convicted, to have all records of the arrest or prosecution erased. A granted petition is the only real "expungement" in California. This relief is not available to persons who were convicted or plead guilty.

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A pardon is an order by the Governor of the State of California, or the President of the United States, that declares a criminal conviction to be null and void. The conviction is, in effect, forgiven. There are two types of Governor's pardons. The first type of Governor's pardon is a "direct" pardon (Penal Code sections 4800-4813). The second Governor's pardon is based on a certificate of rehabilitation. (Penal Code sections 4852.01-4852.21.)

A "direct pardon" can be made by the Governor based upon an application made directly to the Governor's office. An "indirect pardon" is based upon a certificate of rehabilitation that is issued by a trial judge. A certificate of rehabilitation is a recommendation to the Governor that he grant a pardon. The Governor is then free to grant or deny the pardon as he sees fit.

Procedures to obtain a pardon are complex. The Office of the Governor's pamphlet on how to obtain a certificate of rehabilitation and a pardon can be found at: https://www.gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf

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Almost all cases in juvenile courts are completely confidential and information about juvenile arrests and convictions are not public records. Adult records generally are public record. Welfare and Institutions Code (WIC) section 781 allows for the sealing of juvenile court records. Application to seal these records can be made by persons who complete juvenile probation and are 18 or older or after five years has past, whichever comes first.

Persons seeking to seal their juvenile record can file Judicial Council Form JV-590 with the juvenile court. This form can be found at www.courtinfo.ca.gov/forms.

However, certain serious felony crimes contained in Welfare and Institutions Code section 707(b), including robbery, assault with a firearm, rape and other violent offenses cannot be sealed if the minor was 14 years old or older at the time of the offense. In addition, if the juvenile was 16 or 17 years old when the violent crime was committed, the juvenile conviction will remain a strike for the rest of the person's life and can be used to enhance adult offenses in the future.

In regard to most juvenile convictions, if the record is sealed, the case is deemed "never to have occurred." Later in life an adult may properly reply that they have not been arrested or convicted when asked. Thus, after a juvenile record has been sealed, it is legally proper to deny having the arrest or juvenile conviction. [WIC 781(a)] For more information click to our juvenile page.

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Whenever someone convicted of a misdemeanor or felony successfully completes probation, they become eligible to petition the trial court to withdraw their plea and have the matter dismissed. There are only a few exceptions. Probation must have been completed successfully and if violated, completed successfully thereafter. An applicant cannot be on probation for an intervening charge or have charges pending when seeking this relief. Penal Code sections 1203.4 and 1203.4a govern the procedure and eligibility for this relief. A few sex crimes and a few traffic crimes are ineligible for relief. However, even serious crimes are eligible for relief if probation was granted and successfully completed. [Penal Code section 1203.4(b).]

If the procedure under Penal Code is followed correctly, the judgement of guilt is set aside, a not guilty plea is entered, and the criminal conviction is "dismissed." The court record is amended to indicate that the matter was "dismissed." This action is usually forwarded to the California Department of Justice for entry on the person's criminal history. The 1203.4 dismissal results in the release "from all penalties and disabilities resulting from the offense of which he or she has been convicted." There are a few exceptions.

In the case of felony convictions, that aren't reduced to misdemeanors, before dismissal (see reduction below), a 1203.4 dismissal has little legal effect. Felonies dismissed under 1203.4 can still be used as priors in future criminal prosecutions. The life time ban on possession of a firearm remains. A felony dismissed under 1203.4 is still a "public record." Also, the dismissed felony must be disclosed on an application for public office, a state license, or when contracting with the state lottery. A dismissal under P.C. 1203.4 of a sex crime does not change the need to register.

However, a dismissal of a misdemeanor under 1203.4a, while having the same limitations as noted above for felonies, cannot be inquired about by a potential employer during a job application. [See 2 California Code of Regulations sec. 7287.4(d)] Also in misdemeanor cases, a conviction that did not result in probation, only a jail or a fine, can still be dismissed under Penal Code section 1203.4a.

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With the passage of PROPOSITION 47, in November of 2014, persons with certain low-level, nonviolent felonies can now petition to reduce them to misdemeanors. PETITIONS MUST BE FILED BEFORE NOVEMBER OF 2017. Those persons, who, at any time in the past, were convicted of any of the following felonies, most likely qualify for reduction of those felonies to misdemeanors: Simple drug possession, Grand theft under $950, retail burglary under $950, forging or writing a bad check under $950 dollars, and receiving stolen property under $950.

Certain felony offenses are called "wobblers." A wobbler is a charge that can be charged by a prosecutor as either a misdemeanor or a felony. Some examples of "wobblers" are petty theft with a prior, grand theft auto, possession of methamphetamine, or receiving stolen property. There are many other "wobbler" offenses. A person who was sentenced to probation and completed probation without going to prison is eligible for a reduction of the case to a misdemenaor after succesful completion of probation. After the matter is reduced, it can then be dismissed under Penal Code section 1203.4a as discussed above.

It is vitally important to have a felony "wobbler" reduced and dismissed. The reduction of the matter to a misdemeanor can mitigate most if not all of the legal consequences of having a felony conviction.

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There are many other ways to have a criminal law case dismissed or a criminal conviction reversed.

Even after appeals have been lost, if a person convicted of a crime is still in custody or on probation or parole for the offense, or if the offense is being used as a prior on a new criminal case, a writ of habeas corpus can be pursued to challege the legality of the prior conviction. Some of the legal grounds to challenge a criminal conviction by way of a a writ of habeas corpus include:

  1. That the prosecution used perjured testimony or false evidence during the trial or failed to disclose that a witness was offerred an inducement to testify;
  2. Ineffective assistance of the attorney on the case, also known as "IAC." IAC can occur if the trial attorney failed to conduct necessary investigation of the case, or didn't call logical witnesses at trial;
  3. The prosecution failed to turn over evidence of innocence or evidence or witnesses that could have undermined the prosecution's case; and
  4. New evidence of innocence is discovered after the conviction. Newly discovered evidence could be a witness who admits giving false testimony or DNA evidence that proves innocence, or any other evidence that substantially damages confidence in the conviction.

Both trial and appellate courts are reluctant to grant a writ of habeas corpus. Having such a writ granted is always a long shot. Years of work by a diligent criminal attorney are often needed to yield a successful result. In the case of Juan Herrera who was wrongfully convicted of murder, it took Long Beach criminal attorney Matthew Kaestner over three years of hard work to obtain a reversal of the case and freedom for Mr. Herrera. Read more

In 2009, Mr. Kaestner was able to have a six year old "strike" conviction reversed and dismissed based on the fact that the original attorney had given the client the wrong advice about the case being a strike. Mr. Kaestner ended up saving his client almost 6 years in prison.

The best way to avoid the consequences of a criminal conviction, is to beat the case in the first place. Long Beach Criminal Law attorney Matthew Kaestner brings over 30 years of experience to the defense of every criminal case. If you have been arrested or accused of a crime, call Mr. Kaestner immediatley. If you have a loved one who's criminal conviction needs a second look, call attorney Kaestner directly at (562) 437-0200 with your questions.

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