Expungement / Record Sealing Petition and Eligibility Memo — California

Expungement / Record Sealing Petition and Eligibility Memo (California)

Quick-Reference Summary

Part A — Eligibility Memo

I. Statutory Framework

California's record-relief framework is statutory and offense-specific. There is no single "expungement" statute; instead, the Penal Code provides several distinct remedies that must be matched to the petitioner's disposition.

§ 1203.4 — Dismissal after successful probation. Available where the defendant was granted probation, fulfilled all conditions, is no longer on probation, and is not currently charged with, on probation for, or serving a sentence for any other offense. Permits withdrawal of guilty/nolo plea, entry of a not-guilty plea, and dismissal of the accusatory pleading.

§ 1203.4a — Misdemeanor / infraction without probation. Available where no probation was granted and one year has elapsed from pronouncement of judgment, provided the defendant fully complied with and performed the sentence, has lived an honest and upright life, and is not then serving a sentence for or charged with any offense.

§ 1203.41 — County-jail felony (post-realignment). Authorizes discretionary dismissal of a felony sentenced under § 1170(h) (county-jail commitment). Relief may be granted one year after completion of the sentence where a split sentence with mandatory supervision was imposed (§ 1170(h)(5)(B)), or two years after completion where a straight county-jail term (§ 1170(h)(5)(A)) or a state-prison term was imposed, with no intervening offense.

§ 1203.42 — State-prison felony (pre-realignment). Discretionary relief for persons sentenced before the 2011 Realignment who would today be eligible for county jail under § 1170(h), available two years after completion of the sentence and provided the defendant is not under supervised release.

§ 17(b) — Wobbler reduction. A wobbler felony (e.g., grand theft, certain drug offenses, assault with a deadly weapon) may be reduced to a misdemeanor on petition after the defendant is sentenced to and serves probation, then dismissed under § 1203.4. Reduction is discretionary.

§ 851.91 — Arrest sealing. Permits sealing of an arrest record where there was no conviction (no charge filed and statute of limitations has run; charges dismissed; acquittal; vacated conviction).

§ 851.93 / § 1203.425 — Automatic relief. Building on AB 1076 (2019) and SB 731 (2022), the current automatic-relief sections § 851.93 (arrests) and § 1203.425 (convictions) each became operative October 1, 2024 (AB 168, Stats. 2024, Ch. 49), subject to Budget Act appropriation. The California Department of Justice reviews state RAP sheets monthly and grants relief without petition for eligible arrests and convictions. Automatic relief is a "relief" notation that limits dissemination to background-check requesters; it is not a true expungement.

II. Eligible vs. Ineligible Offenses

III. Waiting Period Analysis

The waiting period turns on the trigger event for the specific statute:

• § 1203.4 (probation): No fixed waiting period — file at or after successful completion of probation (or earlier upon order of early termination under § 1203.3).
• § 1203.4a (no probation): One year from pronouncement of judgment, with the sentence fully completed.
• § 1203.41 (county-jail felony): One year after completion of the sentence where a split sentence with mandatory supervision was imposed (§ 1170(h)(5)(B)); two years after completion where a straight county-jail term (§ 1170(h)(5)(A)) or a state-prison term was imposed.
• § 1203.42 (state-prison felony): Two years after completion of the sentence, provided the defendant is not under supervised release.
• § 851.91 (arrest sealing — no charge filed): Until statute of limitations runs on every potential charge.

Confirm calculation against the certified disposition: California courts have rejected petitions filed even one day early.

IV. Subsequent-Conviction Bar

§ 1203.4(a) and § 1203.4a require the petitioner be not currently charged with, on probation for, or serving a sentence for any offense at the time of the petition. A new conviction during the waiting period does not automatically disqualify under § 1203.4 (relief is discretionary "in the interest of justice" if probation was not successfully completed) but presumptively disqualifies under § 1203.4a and § 1203.41.

For automatic relief under § 1203.425, a subsequent conviction within the look-back window restarts the eligibility clock.

V. Restitution and Outstanding Obligations

Under current law, an unpaid order of restitution or restitution fine is not grounds for denial of a § 1203.4 petition. Pen. Code § 1203.4(c)(3) provides that a petition "shall not be denied due to an unfulfilled order of restitution or restitution fine," that unpaid restitution shall not be grounds for finding that probation was not completed, and that in the court's discretion and in the interest of justice unpaid restitution shall not be grounds for denial. Parallel provisions appear in § 1203.4a(e), § 1203.41(d), and § 1203.42(c). (California courts have reversed denials that rested on outstanding restitution — see, e.g., Pen. Code § 1203.4(c)(3)(C) and § 17(f).) Restitution nonetheless remains independently collectible, including as a civil judgment.

VI. Effect of Expungement / Sealing

A § 1203.4 dismissal "releases the petitioner from all penalties and disabilities resulting from the offense," except as provided in Vehicle Code § 13555, with the following carve-outs:

• The conviction may be used as a prior in any subsequent prosecution.
• Sex-offender registration under § 290 is not terminated.
• Firearm prohibitions under Pen. Code § 29800 et seq. and federal 18 U.S.C. § 922(g) are not lifted (§ 1203.4(a)(2)).
• The dismissed conviction must be disclosed in response to any direct question on an application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission (§ 1203.4(a)(1)).
• Any unexpired criminal protective order remains in full effect notwithstanding the dismissal (§ 1203.4(a)(4)).
• Driving-under-the-influence convictions remain usable for their statutory purposes under the Vehicle Code notwithstanding dismissal.
• Immigration consequences are NOT eliminated. Under federal immigration law (Matter of Pickering, 23 I&N Dec. 621 (BIA 2003)), a § 1203.4 dismissal granted as rehabilitative relief still counts as a "conviction" for INA purposes. Non-citizen petitioners must consult an immigration attorney before relying on dismissal.

For arrest sealing under § 851.91, the record is sealed as to non-criminal-justice agencies; the arrest "shall be deemed not to have occurred" for most purposes, and the petitioner may answer accordingly on most applications.

VII. Automatic-Relief Program (Clean Slate / SB 731 / AB 1076)

California has two automatic-relief tracks operated by the DOJ on a monthly review of state RAP sheets; both current sections became operative October 1, 2024:

• § 851.93 (arrests). Automatic relief for arrests on or after January 1, 1973 where, e.g., (i) the arrest was for a misdemeanor and the charge was dismissed, or no proceedings were initiated and at least one year has elapsed with no conviction/after acquittal; or (ii) the arrest was for a felony (not punishable by 8+ years) and no proceedings were initiated and at least three years have elapsed with no conviction/after acquittal (six years for offenses punishable by 8+ years); or (iii) the person completed a qualifying diversion program.

• § 1203.425 (convictions). Automatic relief for eligible misdemeanor, infraction, and non-serious/non-violent/non-sex felony convictions after the applicable waiting period (probation completed without revocation for probation grants; at least one year for misdemeanors/infractions without probation; four years after completing supervision for eligible felonies) with no intervening felony. The conviction-side program is operative October 1, 2024 (§ 1203.425(d); AB 168, Stats. 2024, Ch. 49).

Automatic relief is a "relief granted" notation on the RAP sheet that suppresses dissemination to most employers and licensing agencies. It does not apply to (i) offenses requiring § 290 registration; (ii) serious or violent felonies under §§ 667.5, 1192.7(c); (iii) certain offenses with statutory bars. Petitioners should not rely on automatic relief without verifying status through a DOJ personal record review (Pen. Code §§ 11122–11124).

Part B — Petition Template

Caption

Superior Court of California, County of [____________________]
Case No.: [________________________________]
Hearing Date: [__/__/____]
Department: [____]

I. Petitioner Information

Name: [________________________________]
Date of Birth: [__/__/____]
CII Number (if known): [________________________________]
Current Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]
Represented by Counsel: ☐ Yes ☐ No
Counsel Name and State Bar No.: [________________________________]

II. Underlying Case Information

III. Eligibility Statement

Petitioner respectfully states under penalty of perjury that:

☐ Petitioner has fulfilled the conditions of probation for the entire period thereof, OR has been discharged prior to the termination of the probationary period (§ 1203.4(a)(1));
☐ Petitioner is not now serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense;
☐ Any restitution or restitution fine remains subject to collection, but an unfulfilled restitution order is not grounds for denial of this petition (§ 1203.4(c)(3));
☐ The offense of conviction is not a statutorily excluded offense under § 1203.4(b) (specified sex/obscenity offenses; felony § 261.5(d); VC § 42002.1 misdemeanors; infractions);
☐ [If § 1203.4a:] One year has passed since pronouncement of judgment and petitioner has fully complied with and performed the sentence;
☐ [If § 1203.41 or § 1203.42:] The applicable post-completion waiting period has elapsed and petitioner has not been convicted of any felony or misdemeanor in the interim;
☐ [If § 17(b) reduction sought:] The offense of conviction is a wobbler and reduction to a misdemeanor is in the interest of justice.

IV. Statement of Grounds for Relief

Petitioner seeks dismissal under Penal Code § [____] for the following reasons:

1. Statutory eligibility. As shown in Part III, petitioner satisfies each statutory prong.
2. Successful completion of supervision. [Describe completion of probation, parole, mandatory supervision.]
3. Rehabilitation since conviction. [Describe employment, education, family responsibilities, community service, treatment program completion, time elapsed since offense, lack of further criminal history.]
4. Hardship from continued conviction record. [Describe employment denials, housing denials, professional licensing barriers, immigration consequences.]
5. Interest of justice. Granting relief furthers the rehabilitative purpose of § 1203.4 and removes barriers to lawful reintegration.

V. Service of Notice

The prosecuting attorney must be given at least 15 days' notice of the petition for relief (Pen. Code § 1203.4(d)(1)); the probation officer also notifies the prosecuting attorney when the petition is filed.

VI. Requested Relief

WHEREFORE, Petitioner requests that this Court:

☐ Permit petitioner to withdraw the plea of guilty / nolo contendere and enter a plea of not guilty;
☐ Set aside the verdict of guilty;
☐ Dismiss the accusatory pleading pursuant to Penal Code § 1203.4 (or § 1203.4a / § 1203.41 / § 1203.42, as applicable);
☐ [If wobbler:] Reduce the felony conviction to a misdemeanor pursuant to Penal Code § 17(b);
☐ [If arrest sealing:] Order the arrest record sealed pursuant to Penal Code § 851.91 and direct law-enforcement agencies and the Department of Justice to seal their records of the arrest;
☐ Order the clerk to transmit a conformed copy of this order to the California Department of Justice and to each agency listed in Part V;
☐ Order such other and further relief as the Court deems just.

Signature Block and Verification

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed at [____________________], California, on [__/__/____].

[________________________________]
Petitioner (signature)

[________________________________]
Print Name

Submitted by:

[________________________________]
Attorney for Petitioner
State Bar No.: [____]
[Firm Name, Address, Telephone, Email]

Part C — Filing Checklist

☐ Certified copy of disposition (minute order / abstract of judgment / docket) from clerk obtained
☐ DOJ Live Scan RAP sheet pulled and reviewed (Pen. Code § 11105) for any disqualifying intervening convictions
☐ Waiting period calculated from correct trigger date (probation completion / judgment / sentence completion)
☐ Confirm whether the conviction has already been automatically dismissed by DOJ under § 1203.425 (petition may still add value, e.g., § 17(b) reduction)
☐ Form CR-180 (Petition for Dismissal) and CR-181 (Order for Dismissal) prepared — Judicial Council forms, effective January 1, 2024
☐ Form CR-409 prepared if seeking arrest sealing under § 851.91
☐ Filing fee paid (up to $150 per § 1203.4 petition) OR fee waiver Form FW-001 submitted
☐ Petition filed in correct Superior Court (county of conviction)
☐ Proof of service on District Attorney filed (15+ days before hearing)
☐ Proof of service on Probation Department filed
☐ Hearing date calendared (or petition submitted for in-chambers review where the court permits)
☐ Wobbler reduction motion under § 17(b) filed concurrently if applicable
☐ Post-order: conformed Order (CR-181) transmitted to California DOJ — Bureau of Criminal Information and Analysis
☐ Post-order: conformed copy retained by petitioner for use with future employers
☐ Post-order: copy provided to background-check vendor dispute desks (Fair Credit Reporting Act, 15 U.S.C. § 1681i)

Sources and References

• California Penal Code §§ 1203.4, 1203.4a, 1203.41, 1203.42, 17(b), 851.91, 851.93, 1203.425 — https://leginfo.legislature.ca.gov/faces/codes.xhtml
• Judicial Council Forms CR-180 / CR-181 (eff. Jan. 1, 2024) and CR-409 — https://selfhelp.courts.ca.gov/jcc-form/CR-180
• California Department of Justice, Automatic Record Relief (Pen. Code §§ 851.93 and 1203.425) — https://oag.ca.gov/fingerprints/automatic-record-relief-penal-code-sections-851.93-and-1203.425
• SB 731 (2022) — https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB731
• AB 1076 (2019) — https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1076
• AB 168 (2024), Stats. 2024, Ch. 49 — made §§ 851.93 and 1203.425 operative October 1, 2024
• DOJ Personal Record Review (Pen. Code §§ 11122–11124) — https://oag.ca.gov/fingerprints/record-review