CAL POST CON " VEHICLES " EXPUNGEMENTS " EXPUNGEMENTS POSSIBLE IN THREE SITUATIONS " (A) FULL COMPLIANCE; (B) EARLY DISCHARGE FOR FULL COMPLIANCE; OR (C) DISCRETION IN OTHER CASES
People v. Johnson, 211 Cal.App.4th 252, 149 Cal.Rptr.3d 482 (4th Dist. Nov. 20, 2012) (There are three situations in which a defendant may be entitled to a dismissal of his or her conviction: (a) where the defendant has fulfilled the conditions of probation for the entire probationary period; (b) where the defendant has been discharged before the termination of the period of probation; or, (c) in any case in which a court, in its discretion and the interests of justice, determines he should be granted relief. ( Id. at p. 587, 164 Cal.Rptr. 475; see also People v. Field (1995) 31 Cal.App.4th 1778, 1787, 37 Cal.Rptr.2d 803.) The court is required to grant relief if the petitioner comes under either of the first two situations. (Butler, at p. 587, 164 Cal.Rptr. 475.)).

Lower Courts of Ninth Circuit

CAL POST CON " STATE REHABILITATIVE RELIEF " EXPUNGEMENT OF SEX OFFENSES DEPENDS ON THE SEX OFFENSE
People v. Smith, 227 Cal.App.4th 717, 721, 174 Cal.Rptr.3d 103 (1st Dist. June 30, 2014) (We find section 1203.4, subdivision (b) does not prohibit dismissal of defendant's convictions for violating sections 288a, subdivision (b)(2) and 289, subdivision (i) [oral copulation with a person under the age of 16 by a person over the age of 21 and sexual penetration of a person under age 16 by a person over age 21], and we reverse and remand for further proceedings on those convictions.)

PRACTICE ADVISORY " CAL POST CON " VEHICLES " EXPUNGEMENTS " NEW REALIGNMENT EXPUNGEMENT STATUTE
Realignment Expungements under Penal Code 1203.41 By Norton Tooby In 2013, the California Legislature enacted a Realignment Expungement statute granting the court the discretion to expunge felony sentences in excess of one year imposed under the realignment legislation. See Penal Code 1203.41 (effective Jan. 1, 2014, added by Stats.2013, c. 787, A.B. 651, 1). If the defendant is given a realignment felony county jail sentence in excess of one year, pursuant to Penal Code 1170(h)(5), the court has discretion to grant an expungement in the interests of justice analogous to that available to probationers under Penal Code 1203.4(a). This new statute provides: The court may permit the defendant 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 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. Penal Code 1203.41(a)(1). This expungement may be granted after the expiration of one year following completion of a split sentence, under Penal Code 1170(h)(5)(B) (in which a concluding portion of the sentence is suspended, and the defendant released for the balance of the term on postrelease community supervision), or after the expiration of two years following completion of a full-term sentence under Penal Code 1170(h)(5)(A). Penal Code 1203.41(a)(3). The relief available under this section may be granted only if the defendant is not under supervision [during service of a split sentence], and is not serving a sentence for, on probation for, or charged with the commission of any offense. Penal Code 1203.41(a)(3).

Tenth Circuit

POST CON RELIEF " COLORADO " POST CON RELIEF POSSIBLE AFTER EXPUNGEMENT IF CONVICTION STILL TRIGGERS IMMIGRATION CONSEQUENCES
People v. Corrales-Castro, ___ P.3d ___, ___ (Mar. 26, 2015) ("[W]e hold that, when, as here, a defendant shows that his or her guilty plea may have serious legal consequences under federal immigration law notwithstanding its withdrawal pursuant to section 18-1.3-102(2), the defendant may challenge the constitutionality of the plea under Crim. P. 32(d).").

Other

ARTICLE -- CAL POST CON " STATE REHABILITATIVE RELIEF " EXPUNGEMENTS THAT DO NOT COMPLETELY ERASE A CONVICTION FOR SOME PURPOSE DO NOT BLOCK LATER POST-CONVICTION RELIEF THAT DOES
If an Expungement Will Not Solve the Particular Immigration Problem, It is Still Possible to Pursue Other Post-Conviction Relief After an Expungement Has Been Obtained. Because expunged convictions continue to exist for some purposes, it is still possible, even after an expungement under Penal Code 1203.4(a) has been obtained, to attack the conviction through other post-conviction vehicles, such as a petition for a writ of coram nobis. (People v. Wiedersperg (1975) 44 Cal.App.3d 550, 118 Cal.Rptr. 755.) Even after expungement has been granted, the court still has jurisdiction to reduce an alternative felony misdemeanor to a misdemeanor under Penal Code 17. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 55 Cal.Rptr. 350.) The same should logically hold true for other forms of post-conviction relief, such as habeas corpus and the like. In Meyer v. Superior Court (1966) 247 Cal.App.2d 133, a Penal Code 17(b) motion to reduce a conviction from a felony to a misdemeanor was granted after relief under Penal Code 1203.4 had already been obtained. The defendant had been convicted of an alternative felony/misdemeanor (a wobbler) as a felony in 1960, and his conviction had subsequently been expunged pursuant to Penal Code 1203.4(a). He then tried to have his felony reduced to a misdemeanor pursuant to Penal Code 17(b), which had been modified in 1963 to include the reduction language and probation language that Penal Code 17(b)(3) contains today. The trial court refused, stating it had no jurisdiction because an expungement under Penal Code 1203.4(a) had already been granted. The appellate court ruled that the statute, while arguably not retroactive, was merely restating the power that a judge in California already possessed, and that a conviction may be reduced even well after a granting of a Penal Code 1203.4 expungement. Penal Code 17(b) states that a felony may be reduced to a misdemeanor "at any time." Neither the probation statutes nor the cases applying them support a holding that expiration of the probationary period terminates the court's jurisdiction of the subject matter. The statutes themselves contemplate that the courts fundamental jurisdiction continues, for they provide for the court's determination of certain matters after the end of the probationary term. (In re Griffin (1967) 67 Cal.2d 343, 62 Cal.Rptr. 1.) Penal Code 17 provides, Where a court grants probation to a defendant without imposition of sentence upon conviction of a crime punishable in the discretion of the court by imprisonment in the state prison or imprisonment in the county jail, the court may at the time of granting probation, or, on application of defendant or probation officer thereafter, declare the offense to be a misdemeanor. The court's power and duty to pass on such an application for reduction of the offense to a misdemeanor continues after the end of the probationary term. (In re Griffin (1966) 67 Cal.2d 343, 347.) The court is empowered to change a crime from a felony to a misdemeanor, and it may do so after the probationary period has expired, and after the probationer has had his record expunged under Penal Code 1203.4. (Meyer v Superior Court (1966) 247 Cal.App.2d 133.) 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. [Citation.] . . . 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. . . . (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140.) Although a conviction has been expunged, a person should not be barred from later 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. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140.) Similarly, the court of appeal held that the expungement of a conviction under Penal Code 1210, after successful completion of Prop. 36 drug treatment, did not render her appeal from the judgment of conviction to be moot, holding she is entitled to an opportunity to clear her name and rid herself of the stigma of criminality. (People v. Delong (2002) 101 Cal.App.4th 482, 124 Cal.Rptr.2d 293.)

PRACTICE ADVISORY " CAL POST CON " VEHICLES " EXPUNGEMENTS " NEW REALIGNMENT EXPUNGEMENT STATUTE
Realignment Expungements under Penal Code 1203.41 By Norton Tooby In 2013, the California Legislature enacted a Realignment Expungement statute granting the court the discretion to expunge felony sentences in excess of one year imposed under the realignment legislation. See Penal Code 1203.41 (effective Jan. 1, 2014, added by Stats.2013, c. 787, A.B. 651, 1). If the defendant is given a realignment felony county jail sentence in excess of one year, pursuant to Penal Code 1170(h)(5), the court has discretion to grant an expungement in the interests of justice analogous to that available to probationers under Penal Code 1203.4(a). This new statute provides: The court may permit the defendant 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 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. Penal Code 1203.41(a)(1). This expungement may be granted after the expiration of one year following completion of a split sentence, under Penal Code 1170(h)(5)(B) (in which a concluding portion of the sentence is suspended, and the defendant released for the balance of the term on postrelease community supervision), or after the expiration of two years following completion of a full-term sentence under Penal Code 1170(h)(5)(A). Penal Code 1203.41(a)(3). The relief available under this section may be granted only if the defendant is not under supervision [during service of a split sentence], and is not serving a sentence for, on probation for, or charged with the commission of any offense. Penal Code 1203.41(a)(3).