PC1203.4

Penal Code section 1203.4

Motion

Judicial Council forms

• CR-180 Petition for Dismissal
• CR-181 Order for Dismissal

Offenses for which expungement is not available

Code	Crime	Notes
VC2800	Failure to obey officer
VC2801	Failure to obey firefighter
VC2803	Improper load on a vehicle
PC286(c)	Sodomy with <14-year old victim
PC288	Lewd or lascivious act on a <14-year old victim or dependent person
PC288a(c)	Oral copulation with <14-year old victim
PC288.5	Continuous child sex abuse
PC289(j)	Sexual penetration with <14-year old victim
PC311.1	Child pornography	Added by AB20(2013)
PC311.2	Distribution of obscene matter	Added by AB20(2013)
PC311.3	Sexual exploitation of a child	Added by AB20(2013)
PC261.5(d) as a felony	Statutory rape by an adult on a <16-year old victim
Infractions	But PC1203.4a is available

n.b. Expungement is available for an attempt to commit any of the above crimes. (People v. Marinelli (2014) 225 Cal.App.4th 1, 5; People v. Lewis (2006) 146 Cal.App.4th 294.)

Cases for which expungement is discretionary

Code	Crime	Notes
VC20001	Hit-and-run with injury
VC20002	Hit-and-run with property damage
VC23152	Driving under the influence
VC23153	Driving under the influence with injury
VC23103	Reckless driving
PC191.5(b)	Vehicular manslaughter while intoxicated
PC192(c)	Vehicular manslaughter
VC2800.2	Evading police officer
VC2800.3	Evading police officer with injury
VC21651(b))	Driving on wrong side of divided road
VC22348(b)	Driving in excess of 100MPH
VC23109(a)	Speed contest
VC23109(c)	Exhibition of speed
VC23109.1	Speed contest with injury
VC31602	Transporting explosives without license
VC23140(a)	Driving with >0.05 BAC while under 21 years of age
VC23140(b)	Driving under influence while under 21 years of age
VC14601	Driving on a suspended license
VC14601.1	Driving on a suspended license
VC14601.2	Driving on a license suspended for DUI
VC14601.3	Driving on a license suspended for being habitual traffic offender
VC14601.5	Driving with knowledge of suspended license

Cases for which expungement is mandatory

• All other cases in which probation was fulfilled, or there was a successful early discharge from probation

Successful completion of probation

Note, Defining a Successful Completion of Probation Under California's Expungement Statute, 24 Whittier L. Rev. 1077 (Summer 2003).

People v. Turner

Even if the court did not formally revoke probation, a person can be deemed to have not successfully completed probation. (People v. Covington (2000) 82 Cal.App.4th 1263, 1267; People v. Chandler (1988) 203 Cal.App.3d 782, 789.)

Failure to pay restitution in full can be deemed not a successful completion of probation. (People v. Covington (2000) 82 Cal.App.4th 1263, 1269–1270; People v. Chandler (1988) 203 Cal.App.3d 782, 789.) This is even if one has made all court-ordered payments towards restitution. (People v. Covington (2000) 82 Cal.App.4th 1263,

People v. Covington

Early termination of probation

"[A] defendant is not required to have successfully fulfilled all the terms of probation for the entire probationary period in order to qualify for relief under Penal Code section 1203.4. Once the trial court had terminated defendant's probation prior to the termination date, the court had no further discretion to deny a motion for relief under Penal Code section 1203.4." (People v. Guillen (2013) 218 Cal.App.4th 975, 1001.)

A person who gets an early termination of probation that results in a prison sentence is not eligible for PC1203.4 relief. (People v. Johnson (2012) 211 Cal.App.4th 252.)

If one day before expiration of probation, the court summarily revokes probation, and then reinstates and terminates, that is not considered a successful early termination of probation, because at no time did the court excuse the probationer from complying with all the conditions of probation. (People v. Chandler (1988) 203 Cal.App.3d 782, 790.)

Other factors for eligibility

A person with a suspended prison sentence that is not executed is still considered a probationer and therefore eligible for PC1203.4 relief. (People v. Parker (2013) 217 Cal.App.4th 498.)

A person found not guilty by reason of insanity is not eligible for PC1203.4 relief. (People v. Morrison (1984) 162 Cal.App.4th 995.)

Consequences of PC1203.4 relief

Restitution fund

No longer obligation to pay restitution fine. "In the narrow set of cases where relief has been granted under Penal Code section 1203.4, however, the charge of which the successful probationer was convicted is dismissed, and the probationer thereafter has been expressly "released from all penalties and disabilities resulting from the offense." The foundation of the restitution fine—the underlying charges, offense and verdict—no longer exists for most purposes. It is therefore appropriate for the trial court to suspend or dismiss the restitution orders and fines as a means of fulfilling the statutorily provided release from that particular penalty resulting from the offense. "(People v. Guillen (2013) 218 Cal.App.4th 975, 1003.)

(People v. Holman (2013) 214 Cal.App.4th 1438.)

Sex offender registration

Relief under PC1203.4 does not remove one from the Megan's Law website. (Doe v. California Depart. of Justice (2009) 173 Cal.App.4th 1095.)

County practices

Contra Costa

Filing fee for an infraction or misdemeanor without probation is $60. Filing fee for a misdemeanor or a felony with probation is $150.

All felonies are filed in Martinez. Felonies with misdemeanors are also filed in Martinez. Walnut Creek, Martinez, and Concord/Mt. Diablo misdemeanors and infractions are filed in Martinez.

Misdemeanors and infractions with the most recent misdemeanor in Richmond are filed in Richmond.

Misdemeanors and infractions with the most recent misdemeanor in Pittsburg are filed in Pittsburg.

Martinez wants one original plus one copy for the District Attorney and one copy for Probation plus any additional copies for yourself. Richmond and Pittsburg want original plus one additional copy.

Sacramento

Sacramento County requires five total copies of CR-180 and CR-181 to be submitted to the court.

San Diego

San Diego County uses local forms. [1] [2] [3] Use of the Judicial Council forms is highly discouraged by the clerks. If it is necessary to use Judicial Council forms, please refer clerks to State Court Rule 1.35(a). North County branch requires additional copy of local petition for the court's research attorney.

San Francisco

San Francisco requires an original plus two copies. San Francisco does not charge for 1203.4s.

Statute

Penal Code section 1203.4.

(a)

(1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

(2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.

(3) Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.

(4) This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.

(b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.

(c)

(1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.

(2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant.

(d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.

(e)

(1) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.

(2) It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.

(f) If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.

(g) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.

Legislative History

(Amended (as amended by Stats. 2010, Ch. 178, Sec. 76) by Stats. 2011, Ch. 285, Sec. 17. Effective January 1, 2012.)