Tooby's California Post-Conviction Relief for Immigrants

If a proper new application for expungement is filed,[230] and the court verifies eligibility for expungement,[231] the court could hold a hearing and grant the motion to withdraw the guilty plea or verdict, enter a not guilty plea, and dismiss the charges as usual even in the absence of a normal court file.

            The clerk could simply create clerk’s minutes bearing the original docket number and reflecting the court’s new actions, and defense counsel could simply submit a proposed order granting the motion for expungement for the court to sign, thus creating the new records necessary to document the expungement.  The clerk could then complete the new abstract of judgment which could be sent to the state and local criminal history agencies just as if the original court file had not been purged.

            The purging of the records, in and of itself, does not constitute an expungement.  An expungement is technically withdrawal of a guilty or nolo plea or verdict, entry of a new not guilty plea, and dismissal of the charge.

[230] It should be possible to obtain the date of conviction, case number, and charges from the state or local criminal history records on the client, or the records of the client or original defense attorney, even if the original court file has been destroyed.

[231] The probation department could verify the lack of any violations of probation during the probationary period, even if the court files have been purged.  Eligibility can be determined, prima facie, from the rap sheet showing the absence of any new arrests during the probationary period.  The defendant can establish, in a declaration, that s/he completed probation without incident and satisfied all other conditions of probation.