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.

Other

CAL POST CON " VEHICLES " EXPUNGEMENTS
People v. Johnson, 211 Cal.App.4th 252, 149 Cal.Rptr.3d 482 (4th Dist. Nov. 20, 2012) (affirming trial court's denial of defendant's motion to set aside where early termination of probation, standing alone, does not require relief, where defendant violated the prescribed conditions of probation during the probationary term, and because his period of probation was not terminated for good conduct, but, rather, terminated unsuccessfully because a prison term had been imposed on him in other felony cases).

CAL POST CON " STATE REHABILITATIVE RELIEF " EXPUNGEMENT UNDER PENAL CODE 1203.4 " DISCRETIONARY POWER TO DISMISS AFTER PROBATION VIOLATION
People v. McLernon, 174 Cal.App.4th 569, 94 Cal.Rptr.3d 570 (May 29, 2009)(reversing trial court's order denying defendant's motion to withdraw his guilty plea and dismiss his conviction despite fact that defendant violated probation). Under Penal Code section 1203.4 (section 1203.4), a defendant who has been convicted of a crime and granted probation is entitled to have his record expunged after the period of probation has terminated if he comes within any one of three fact situations: (a) he has fulfilled the conditions of his probation for the entire period; (b) he 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. (People v. Butler (1980) 105 Cal.App.3d 585, 587, 164 Cal.Rptr. 475.) In this case, defendant Myrle Dennis McLernon moved under section 1203.4 to expunge his conviction for possession of a controlled substance for sale. Because he had violated his probation, his motion sought relief under the third situation and was supported by evidence of his conduct since his probation ended. The trial court rejected the motion because McLernon previously had submitted different petitions for relief that were denied for failure to successfully complete probation. McLernon appeals, arguing the trial court abused its discretion by denying relief in light of the evidence of post-probation conduct he presented. The Attorney General contends there was no abuse of discretion because, inter alia, when determining whether the interests of justice warrant relief under section 1203.4, the court may consider a defendant's conduct only during the period of probation. We hold that consideration of post-probation conduct is not precluded under the statute. Because it appears that the trial court did not consider the merits of McLernon's motion, we reverse the order and remand the matter to the trial court to determine whether, in the exercise of its discretion and the interests of justice, McLernon is entitled to relief under section 1203.4. (People v. McLernon, 174 Cal.App.4th 569, 94 Cal.Rptr.3d 570 (May 29, 2009).) First, the language of the minute order at issue makes clear that the trial court did not consider the merits of McLernon's motion. The court rejected the motion as having been submitted and denied on 3-06-01 and 6-05-07. Moreover, the minute order denying the previous motion petition on June 5, 2007 indicates that the reason for that denial was the denial of the March 6, 2001 motion, which was denied due to unsatisfactory performance on probation. Thus, it appears that the sole basis for denying any of McLernon's requests for relief under section 1203.4 was his unsatisfactory performance on probation. *4 In fact, both the plain language of the statute and the legislative history of the 1971 amendment to the statute (Stats.1971, ch. 333, 1) show that the purpose of the amendment to add discretionary relief was to give trial courts the power to set aside a conviction after the termination of probation whenever the circumstances warranted it.FN5 ( 1203.4, subd. (a) [relief may be granted 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], italics added; Assem. Com. on Criminal Justice, Bill Digest on Sen. Bill No. 248 (1971 Reg. Sess.) June 22, 1971, furnished by Legislative Research Incorporated [proposed amendment expands statute so that it applies to defendants who did not successfully complete their probation. In effect, it provides that any defendant can have a conviction set aside after the termination of probation whenever a court, in its discretion and the interests of justice, determines that such relief should be granted.].) Indeed, the amendment was requested by the attorney for a defendant who, after a probation violation, completed his probation with no further violations, raised his child alone, and then went to college, worked without pay for the State Parole Board, and was trying to become a social worker. Although the trial court in his case expressed a desire to grant relief under section 1203.4, it concluded it could not do so because of the defendant's parole violation. The amendment to section 1203.4 was designed to give courts the ability to grant relief in these circumstances. (See Sen. Com. on Judiciary, Background Information on Sen. Bill No. 248 (1971 Reg. Sess.), furnished by Legislative Research Incorporated.) Thus, in determining whether to grant relief under the discretionary provision, the trial court may consider any relevant information, including the defendant's post-probation conduct.