Ninth Circuit

POST CON RELIEF " CALIFORNIA " STATE REHABILITATIVE RELIEF -- REDUCTION FROM FELONY TO MISDEMEANOR AFTER EXPUNGEMENT HAS BEEN GRANTED
California courts have held it proper to grant post-conviction relief under Penal Code 17(b), reducing a felony to a misdemeanor, after an expungement has been granted under Penal Code 1203.4(a). In these cases, the essence of the rulings is that an expungement under 1203.4 does not wipe-out or expunge all of the disabilities flowing from the conviction. Therefore, the residual part of the conviction, that is the parts that remain after the expungement, can be reduced by the court in the interests of justice. Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140, 55 Cal.Rptr. 350. The court stated: The remaining question is whether the petitioner is barred from making application under Section 17, as amended, since (a) his probationary period has expired and (b) his record was expunged under Penal Code Section 1203.4. We think not. The word 'thereafter' in Penal Code Section 17 is not followed by a time limit, nor is it by express terms restricted to the probationary period. Moreover, in conferring upon the court the power to declare an offense to be a misdemeanor after it has suspended imposition of judgment or sentence, the Legislature evidently intended to enable the court to reward a convicted defendant who demonstrates by his conduct that he is rehabilitated. Thus, the word 'thereafter' should not be unduly restricted to the probationary period for there is even greater reason for rewarding a convicted defendant who continues to demonstrate his rehabilitation long after his probation has expired, when he is no longer under the constant supervision of a probation officer. The expungement of the record under Section 1203.4 is also a reward for good conduct and has never been treated as obliterating the fact that the defendant has been convicted of a felony. As stated by the court in In re Phillips, 17 Cal.2d 55, 61, 109 P.2d 344, 348, 132 A.L.R. 644: The power of the court to reward a convicted defendant who satisfactorily completes his period of probation by setting aside the verdict and dismissing the action operates to mitigate his punishment by restoring certain rights and removing certain disabilities. But it cannot be assumed that the legislature intended that such action by the trial court under section 1203.4 should be considered as obliterating the fact that the defendant had been finally adjudged guilty of a crime. Therefore, a conviction which has been expunged still exists for limited purposes, including, among others, evidentiary use at a later trial (People v. Banks, supra, 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102) and the denial of the right to carry a cancelable weapon (Penal Code Section 1203.4). Consequently, petitioner should not be barred from pursuing a more suitable remedy, particularly where the final decision as to whether he is worthy rests within the sound discretion of the Superior Court. It is accordingly ordered that a peremptory writ of mandate issue requiring the Superior Court of the County of Sacramento to hear on the merits petitioner's motion to declare the offense of which he was convicted on July 22, 1960, to be a misdemeanor. More recently in People v. Wiedersperg (1975) 44 Cal.App.3d 550, 553-554, the issue appeared in an immigration context as part of a Writ of Coram Nobis. The First District Court of Appeals reasoned as follows: Did the trial court have jurisdiction to entertain the petition? The court held that because the guilty finding had been set aside, the not-guilty plea reinstated, and the information dismissed, all pursuant to section 1203.4 of the Penal Code, it did not have jurisdiction to vacate the judgment. The judge said, '. . . the complete information has been wiped out from under me. I have nothing before me right now. That has been expunged . . . I have no jurisdiction.' The question of the propriety of this ruling appears to be one of first impression. Section 1203.4 provides that in any case in which the defendant has successfully completed the period of probation he may be permitted by the court to withdraw his guilty plea, after which the court shall dismiss the information against him, 'and he shall thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted.' However, the expungement procedure does not eradicate the conviction. Even though the information has been dismissed, the 'EXPUNGED' CONVICTION MAY BE PLEADED AND PROVED in a subsequent case as a prior conviction. Also, the defendant may be convicted of possession of a firearm by a prior felon, based upon his expunged conviction. (Pen.Code, 1203.4, subd. (a).) Furthermore, the conviction exists for other purposes, such as suspending a physician's license for unprofessional conduct (Meyer v. Board of Medical Examiners (1949) 34 Cal.2d 62, 206 P.2d 1085); disbarring an attorney (In re Phillips (1941) 17 Cal.2d 55, 109 P.2d 344); res judicata in a civil action for nonsupport of a child (People v. Majado (1937) 22 Cal.App.2d 323, 70 P.2d 1015); and, as in the case at bench, deportation (8 U.S.C.A. s 1251, subd. (a) (11); Gonzalez de Lara v. United States (5th Cir. 1971) 439 F.2d 1316). Although the effect of expungement under section 1203.4 is to relieve the defendant of certain penalties and disabilities resulting from the conviction, it does not 'affect the fact that his guilt has been finally determined according to law.' (Meyer v. Board of Medical Examiners, supra, 34 Cal.2d at p. 65, 206 P.2d at p. 1087.) It follows, as urged by defendant herein, that because the judgment of conviction exists for some purposes after the granting of relief under section 1203.4, it should be subject to an attack by petition for writ of error coram nobis, since the writ directs its attack upon the lawfulness of the original proceeding and the judgment.

CAL POST CON " STATE REHABILITATIVE RELIEF " EXPUNGEMENT DOES NOT RELIEVE DEFENDANT OF DUTY TO PAY RESTITUTION
People v. Gross, ___ Cal.App. 4th ___, 2015 WL 4524214 (3d Dist. Jul. 27, 2015) (expungement under Penal Code 1203.4(a) does not relieve the defendant of the order to pay restitution, because direct victim restitution is a constitutional mandate that serves to protect public safety and welfare, rather than to punish the defendant, and thus it is not a penalty or disability from which a defendant is released upon the dismissal of criminal charges pursuant to former Penal Code 3200 or Penal Code 1203.4); compare People v. Guillen, 218 Cal.App.4th 975 (4th Dist. Aug. 8, 2013) (dismissal under Penal Code 1203.4 relieves the defendant from the obligation to pay a restitution fine).

POST CON RELIEF " STATE REHABILITATIVE RELIEF " IMMIGRATION EFFECTS " NINTH CIRCUIT " ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) (the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).).