By retired Attorney Dennis Lempert, former Criminal Defense Attorney in Santa Clara County, California. Originally published in 2004 and reposted with permission from Crime, Justice and America magazine
Question:
How Can I Seal My Record In California? My Record Was Already Dismissed Under PC 1203.4
Answer:
Peter A has gotten his case dismissed by using Penal Code §1203.4. That section allows someone who has been convicted of a crime either by pleading guilty or no contest or by a verdict of a judge or jury to clear their record.
The record can be cleared only after the probation has been terminated and if that person is not in jail or charged with the commission of any other offense, not serving a sentence for another offense, or on probation for another offense. The application is made to the court, normally by the Probation Department and must be granted by the judge if all the conditions of the statute are met.
In clearing the record the court orders the plea or verdict withdrawn and then the case is dismissed.
After the case is cleared the record does not disappear from the court files. Anyone looking at the court file will see the full history of the case including the conviction, sentencing and subsequent withdrawal of the plea or verdict and dismissal.
When the record is cleared, the defendant can thereafter, except for some limited exceptions, properly answer that no conviction has been suffered respecting that case. The record clearance was originally intended to allow someone who has been convicted of a crime, and successfully completed probation, to get a fresh start as far as their record is concerned.
The Attorney General State of California maintains detailed criminal record histories regarding people convicted of crimes pursuant to Penal Code §11105. Those records are supposed to be routinely corrected when a clearance under §1203.4 is granted. The court where the action was taken is required to send a notice to the Attorney General within 30 days after the case is cleared by §1203.4. While it is required by statute, sometimes the court fails to send the notice to the Attorney General. So check the court records yourself to be sure, and send a verification letter to the Attorney General.
Now, a couple of really important issues. A §1203.4 record clearance does not allow the convicted person to legally own or possess guns or ammunition if the conviction was for a felony offense, and if the crime was a strike offense, the clearance does not eliminate the strike prior. So be careful not to violate this law in the future.
Finally, because of the widespread use of computer databases if a conviction has been entered into a private computer databases the record clearance is almost never cleared from those private databases. A separate notice and demand for correction of the database made directly to each database operator will be necessary to try to get those records corrected.
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