Criminal Defense Blog
On June 24, 2013, the California Court of Appeal ruled that a felon who successfully completes the conditions of his or her probation term may set aside (i.e. expunge) the conviction despite being originally sentenced to state prison.
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The respondent, Rick Parker Jr., appealed the denial of his petition to expunge his 2006 conviction for possession or purchase of cocaine base for sale (HS 11351.5). Parker was initially sentenced to a 5-year state prison term by the trial court. However, the trial court suspended the prison sentence and granted Parker probation. After he successfully completed the conditions of his probation term, Parker filed a petition under California Penal Code section 1203.4 to expunge the HS 11351.5 conviction.
The trial court denied Parker’s petition because it concluded that he was not eligible for relief under PC 1203.4. The trial court reasoned that since the 5-year prison sentence was “stayed”, Parker was “by operation of law, technically in prison.”
In People v. Mgebrov, 166 Cal. App. 4th (2008), the California Court of Appeals explained that an expungement is “intended to reward an individual who successfully completes probation by mitigating some of the consequences of his conviction.” However, an expungement does not render a prior conviction a “legal nullity.”
According to California Penal Code section 1203.4(a)(1), a defendant may be permitted by the court to withdraw his or her plea of guilty or plea of no contendere (no contest) and enter a plea of not guilty if he or she has fulfilled the conditions of probation for the entire period of probation. California Penal Code section 1203.4(a) defines probation as “the suspension of the imposition or execution of a sentence.”
People v. Parker in California Court of Appeal.
As such, the trial court erred in denying Parker relief under California Penal Code section 1203.4. Operating under the belief that “once you impose but stay execution of a prison term, you are not entitled to 1203.4 relief”, the trial court denied Parker’s petition since it believed that it lacked the power to grant it.
The California Court of Appeal ruled that the trial court did have the power to grant Parker’s expungement. If the trial court had revoked his probation term and committed him to state prison, Parker’s status would have change from “probationer” to “prisoner”. In this situation, Parker would have been ineligible for relief under California Penal Code section 1203.4 since this section does not apply to persons who have actually served a prison sentence. However, Parker qualified as a “probationer” despite having his state prison sentence suspended. As such, his petition to expunge the conviction should have been granted.
In order to obtain an expungement under California Penal Code section 1203.4, you will need to successfully complete the conditions of your probation term. You will be required to do the following:
If you plead guilty to a criminal offense, but are not placed on probation, you can apply for an expungement one year from the date of your guilty or no contest plea (California Penal Code section 1203.4).
The Southern California expungement attorneys at Wallin & Klarich can help you obtain relief under California Penal Code section 1203.4. We can petition the court to have your record changed to show a dismissal rather than a conviction. This may allow you to truthfully say that you have not been convicted of a crime when seeking employment. We are committed to being available to our clients at all times- 24 hours a day, 7 days a week, 365 days a year.
Our offices are located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego, and Sherman Oaks. Please call us today at (877) 4-NO-JAIL or (877) 466-5245 to discuss your case.
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