Tooby's California Post-Conviction Relief for Immigrants

In General.  Penal Code § 1203.4, however, also authorizes discretionary expungement “in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section . . . .”  [Emphasis supplied.]  Since due process requires the accused be given the benefit of every reasonable doubt concerning the interpretation of a statute,[205] this statute must be interpreted as authorizing discretionary expungement even for cases in which the technical requirements are not met -- such as where the defendant has violated a condition of probation, so long as the court finds that the interests of justice will be served by granting the expungement. See § 10.55, infra. This expungement, however, is not effective to eliminate a controlled substances, conviction for immigration purposes. See § 10.9, supra.

            Thus, even where the defendant did not comply with the conditions of probation during the entire period of probation, or receive early termination of probation, s/he is nonetheless eligible for a discretionary grant of expungement under this section.  If there has been one or more probation violations and reinstatements, followed by thereafter‑successful completion of probation, the court still has discretion to grant an expungement.[206]

[205] See In re Winship, 397 U.S. 358, 363‑364  (1970); People v. Davis (1981) 29 Cal.App.3d 814, 828.

[206] People v. Hawley (1991) 228 Cal.App.3d 247, 278 Cal.Rptr. 389; People v. Butler (1980) 105 Cal.App.3d 585, 164 Cal.Rptr. 475; People v. Chandler (1988) 203 Cal.App.3d 782, 788, 250 Cal.Rptr. 730.