An Afternoon in Alameda County Expungement Court

Recently, I spent the afternoon in Department 106 at the Wiley Manuel Courthouse in Oakland. This is where all the clean record cases are heard for Alameda County. The judge decides expungements (petitions to dismiss under PC 1203.4), motions to reduce felonies, petitions to seal arrest records, and the occasional motion for return of property. At the beginning of the clean record calendar, the judge reads the names of every petition that was granted without opposition from the district attorney. Those people are than free to leave and can pick up the order later from the clerk’s office or wait for the order later in the court hearing. Normally, if my case is announced as granted at the beginning of the hearing, I leave. But today, I decided to sit through the remainder of the hearings. Listening to the hearings in petitions opposed by the district attorney gives me a sense of why they were opposed, which helps inform my practice. I learn what causes concerns from the district attorney and how the judge views the legal issues.

The first common problem that resulted in district attorney objection was inadequate proof of the completion of probation requirements. The district attorney objected to granting dismissal under Penal Code section 1203.4 for a two seperate wet and reckless convictions because the petitioners’ attorneys did not submit proof of completion of the 12-hour educational class. Unlike most petitions to dismiss, drunk driving and wet and reckless convictions are granted at the court’s discretion. As such, I always include proof of completion of any required classes as well as a declaration explaining what the person learned from their conviction, how they will avoid another arrest, and the positive changes they have made in their lives. One of the attorneys whose petition was subject to an objection explained that their client took the class during the pandemic and that they could not find a record of it. The judge suggested explaining in a declaration (a signed statement) everything the petitioner had done to try and find the certificate of completion. Another route to find the certificate could be to ask the DMV. Unfortunately, wet and reckless educational certificates are not forwarded to the DMV, but DUI certificates can be found at the DMV. These two cases were continued several months for the attorneys to submit proof or explain in a sworn statement why they can’t obtain the proof.

The second issue that inspired an objection from the DA was insufficient supporting documents in motions to reduce felonies under Penal Code section 17(b). These motions vest considerable discretion to the court, so proof is necessary to show why the motion should be granted. One lawyer submitted a declaration from the petitioner, but the declaration did not explain why reducing the felony was needed and/or important for the petitioner. The crime was serious, so the court wanted more information. Ultimately, after more discussion, the court ended up granting the reduction because the crime was over 20 years old. But there might not have been no opposition at all from the district attorney if a fully developed declaration explaining the need for reduction had been submitted. Another lawyer did not submit a declaration at all. This case was continued to another court date several months later in order for the lawyer to submit a signed declaration. In my motions to reduce, I always ask my clients to provide several support letters, and I help them draft a solid declaration that shows remorse and the need for relief. This provides the court and district attorney with positive information about the case and, hopefully, results in no objection to reduce the misdemeanor.

The third issue that occurred is that an attorney tried to seal a record under Penal Code section 851.91, but a dismissal and reduction to a misdemeanor had already been granted. Sealing is not possible where there was an adult conviction, even with subsequent clean record relief. The lawyer explained that there was inadequate records in the case, which is why the petition was filed. Nonetheless, a cross reference of county court records, county RAP sheet, and the California DOJ report would have likely resolved the issue without having to file a petition with the court. What’s more, filing an amended request with the California Department of Justice can add old clean record relief to the RAP sheet if it is not currently present.

In another case, a petition to seal under Penal Code section 851.91 was filed with inadequate information about the arrest. The district attorney asked for further information like the PFN or CEN of the arrest because they could not locate the arrest in their records. Because of this issue, the court continued the case for several months for the defense attorney to provide more information about the case. I’ve actually run into similar issues in the past; there being insufficient details of an arrest or result of the arrest. Notably, it is possible to attach police reports or police printouts as exhibits to a PC 851.91 petition to help identify the arrest so long as the lawyer is careful not to attach sensitive information. In one case of mine, the charges were over twenty years old and the original conviction had been reversed on appeal. The court record was only on microfiche which made reviewing the court file difficult. Since reversal on appeal is rare after a trial, the clerk had difficulty finding proof the conviction had been vacated. The case took a long time for the court to process, and I had to call the clerk’s office a few times to explain the situation. If I had attached the appellate decision to the original petition as an exhibit, things would have gone a lot faster. Lesson learned.

The final issue was a district attorney objection because of delay in filing a petition to seal under Penal Code section 851.8. A petition under PC 851.8 is called a factual innocence petition, and it is different from a PC 851.91 petition. A factual innocence petition will completely seal and destroy all records of the arrest, including in the CA DOJ report, but it requires that the petition be filed within two years from the date of the arrest and that “there is no reasonable cause” to believe the person committed the crime. Here, the petitioner filed his petition several years after the deadline had expired, and claimed he filed late because the arrest had only recently became an issue for immigration. For “good cause,” the two year timeliness requirement can be waived. The court asked for further briefing on whether lack of knowledge and no collateral consequences until after the two years has passed constituted “good cause” for the delay. Even after explaining the delay, the petitioner still had to prove lack of reasonable cause to believe he committed the crime. The district attorney in this case was opposing both on timeliness and that the petitioner was not actually innocent. The district attorney threatened a “mini-trial” on the issue of innocence. Meaning, the district attorney intended to call witnesses, like the arresting officer, to testify that there is reasonable cause to believe the petitioner was guilty. Because of this concern, in PC 851.8 petitions, I always advise clients that if the client or a witness is not prepared to potentially testify in court if needed, we shouldn’t move forward with the petition. While a “mini-trial” is rare, and most of these are dealt with by simple argument, the statute does permit the introduction of testimonial evidence if the defense or district attorney requests it. Ultimately, the case was continued for several months for further legal arguments on “good cause” for the delay.

In sum, the bulk of the reasons for the Alameda County District Attorney’s objections could have been remedied by filing a petition with more documentation or properly researching the conviction or arrest details ahead of time. This demonstrates that solid preparation is always the best key to success.