Tooby's California Post-Conviction Relief for Immigrants

The completed forms should be submitted to the court with proof of service on the district attorney.[208]  A copy should be mailed to the district attorney and probation department at the same time.  Counsel can follow up with the clerk, if a court appearance is not required, to make sure the expungement is granted.  Counsel can enclose a self‑addressed stamped envelope and cover letter requesting to receive a certified, file‑stamped copy of the order when it is issued.[209]

            If a court appearance is required, the matter will appear on the “motions” calendar with many other cases.  Expungements are usually routinely granted unless there is some problem, such as a probation violation, later conviction, new case pending, or the like.  The prosecutor rarely reviews them in advance and rarely objects to the court granting the expungement.  If the expungement is granted, obtain a certified copy of the “minute order” reflecting the favorable decision, or, better yet, prepare your own order granting the expungement to submit to the court for signature.

            PRACTICE TIP:  Persons who need to obtain expungements quickly should seek as short a probationary period as possible, while making sure to receive some probation,[210] so that they may qualify for an expungement under Penal Code § 1203.4 rather than § 1203.4a.

            If the client is not eligible for expungement, determine whether counsel can help the client to become eligible, such as by filing a motion for early termination of probation, or pleading guilty so as to no longer be under a pending charge.

[208] The statute requires proof of service on the district attorney at least 15 days prior to the expungement hearing.  Penal Code § 1203.4(d).  While the statute requires the probation department to notify the prosecutor when a petition is filed, it is safer to serve the prosecutor yourself so you can file a proof of service demonstrating compliance with the statutory notice requirements. 

[209] The INS requires “certified” copies of court orders expunging or otherwise vacating convictions.

[210] Under the terms of Penal Code § 1203.4, it would appear that persons convicted of felonies who did not receive probation are not precluded from applying for discretionary expungements “in the interests of justice.”  Counsel may wish to make that argument, although case law is against it.  See People v. Borja (1980) 110 Cal.App.3d 378, 167 Cal.Rptr. 813; People v. Jones (1985) 176 Cal.App.3d 120, 221 Cal.Rptr. 382.  One case is known in which a thorny habeas case was settled by granting an expungement in a state-prison felony case.  Discretionary expungements are likewise not technically available in misdemeanor cases in which no probation was granted.  Penal Code § 1203.4a(a).