Tooby's California Post-Conviction Relief for Immigrants

Sometimes, a client will have been arrested on a new charge before seeking help to expunge a former conviction.  The statute provides that a defendant is eligible for an expungement only if s/he “is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense . . . .”[228]  At first glance, it would seem impossible -- after the client has been arrested on a new offense -- to obtain an expungement before the defendant has completed the new probation that will probably result from that arrest.  Since standard probation is often three years, and can run as long as five years, the client may need an expungement before that term is up in order to avoid adverse immigration consequences.

            It is possible to create a “window” of opportunity in which to seek an expungement of old convictions by negotiating and entering a plea to the new offense.  Then, that “charge” is no longer “pending.”  It has become a conviction, and is no longer a “charge.”  At that time, all other charges should be dismissed, and are no longer pending.

            As a matter of common parlance, the term ‘charged with’ refers to the period before conviction, which means either the adjudication of guilt (whether by plea or trial), or the moment of judgment (sentence).  (People v. Rhoads (1990) 221 Cal.App.3d 56, 60.)  A defendant is 'charged with' crimes contained in an accusatory pleading, which exists to provide defendant with notice of those ‘charges.’  Defendant was not ‘charged with’ a felony [after] he was a convicted felon.[229]

Since the client has not yet been sentenced or placed on probation, s/he is not now serving a sentence or on probation.  Therefore, the defendant technically qualifies for an expungement.

            If the case is a sympathetic one, the prosecutor and court may be convinced to grant an expungement under these circumstances.  It may even be possible to include their agreement to grant an expungement as a term in the plea bargain on the new offense.  Or, it may be necessary to obtain one or more continuances of the sentencing proceeding on the new offense in order to create a large enough window to allow you to obtain an expungement of one or more older convictions before sentencing occurs on the new offense.

[228] Penal Code § 1203.4(a).

[229] People v. Stripe (1996) 42 Cal.App.4th 1487, 50 Cal.Rptr.2d 203, opinion vacated when review was granted, 96 DAR 5615 (1996).  Because the decision was vacated, it should not be cited at least in California courts.  Counsel is free to adopt its reasoning.