Penal Code section 1203.4 expungment

 

Penal Code section 1203.4 once provided significant relief from the collateral consequences of a criminal conviction, back when it was first enacted. But the relief it once provided has been significantly eroded over the years by two broad factors. The first broad factor is the general decrease in collateral consequences, such as the inability to vote. The other broad factor has been more significant. Ever since PC 1203.4 was enacted, there have been an increase in exceptions to 1203.4 relief amended into the statute itself, and found by caselaw and erected by other subsequently passed statutes. I believe it is time for the legislature to take a fresh look at 1203.4.The primary relief PC 1203.4 provides today is that the ex-convict can say that he or she once was convicted, but after successful completion of probation, the court vacated the conviction and dismissed the case. Perhaps the person can tell a purely private entity that the person was not convicted, but no case so-holds. I derive this possibility from the requirement in PC 1203.4 that the person must disclose the conviction in certain specific other contexts.My speculation about what a person can tell a private employer is impacted by Cal. Code Regs. tit. 2 ” 7287.4, subdivision (d). This regulation prohibits most private employers from asking a person about a misdemeanor that has been dismissed under PC 1203.4. It strengthens my speculation as to misdemeanors, but weakens it as to felonies.My speculation about what a person can tell a private employer is also impacted by Prop 36. When a person has a Prop 36 conviction “dismissed”under PC 1210.1, subdivision (d), then, under (d)(3), the person “may indicate [whatever that phrase means] in response to any question … that he or she was not arrested or convicted for the offense.” PC 1203.4 contains no such provision. Lianna, and anybody else counseling a person who wants further education,should take note that a college is not an employer, and so is not governed by the above regulation. Take note also of the possible differences between a state school, such as UCLA, and a private school, such as USC. I do not know what regulations may govern what private and public schools can ask of 1203.4 convictions. Likewise, most professions governed by the Business and Professions Code can consider convictions dismissed under PC 1203.4. See, e.g., Business and Professions Code sections 475, 480 and 490. Teachers governed by Education Code sections 44009 and 87009 can see their “dismissed” convictions considered. A dismissal under PC 1203.4 does not seal or expunge the conviction. It remains on the books and available to the general public, with an additional entry of the PC 1203.4 “relief.” PC 1203.4. See, e.g., People v. Sharman(1971) 17 Cal.App.3d 550, 552. In the Internet age, these “dismissed”convictions are increasingly easy to discover.(Note, that a dismissal under Prop 36 also does not seal or expunge anything. If SB 223 passes as amended on July 16, 2001, then a P36 dismissal will, for some but certainly not for all, purposes, mean that “…both the arrest and the conviction shall be deemed never to have occurred.” Still, because P36 will not contain any sealing or expunging language, the effect of this “deem[ing]” remains uncertain.) Note also that PC 1203.4 contains no provision such as the one contained in Prop 36. Under Prop 36, PC 1210.1, subdivision (d)(3), with some exceptions, “a record pertaining to a [dismissed P36 case] may not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.” While that language in P36 probably binds a public entity (such as a public college), it may not have any effect on a purely private entity (such as a private college). I normally counsel people that if they are answering the question to an entity that they believe might make a background check, that they should answer the question by saying something like “yes but the court later vacated the conviction and dismissed the case.” I also tell them that they answer the question “no” at their peril