Automatic Dismissals Under Penal Code section 1203.4, True or False?
True. With new laws coming into effect and previous laws bearing fruit, some people convicted of crimes and granted probation in California may find that the California Department of Justice has automatically dismissed their conviction under Penal Code section 1203.4. This means the person did not file a petition in the Superior Court for dismissal. Instead, the California Department of Justice reviewed their record internally, found them eligible for dismissal, and then transmitted the dismissal to the Superior Court. After receiving that information, the Superior Court is obligated to remove the conviction from their online system, and make it only accessible to the person with the conviction and law enforcement agencies. All of these laws are found in Penal Code section 1203.425.
The criteria for the California Department of Justice to automatically dismiss a case under Penal Code section 1203.4 (commonly referred to as an expungement) are the following:
(i)The person is not required to register pursuant to the Sex Offender Registration Act.
(ii) The person does not have an active record for local, state, or federal supervision in the Supervised Release File.
(iii) Based upon the information available in the department’s record, including disposition dates and sentencing terms, it does not appear that the person is currently serving a sentence for an offense and there is no indication of pending criminal charges.
(iv) Except as otherwise provided in subclause (III) of clause (v), there is no indication that the conviction resulted in a sentence of incarceration in the state prison.
(v) The conviction occurred on or after January 1, 1973, and meets either of the following criteria:
(I) The defendant was sentenced to probation and, based upon the disposition date and the term of probation specified in the department’s records, appears to have completed their term of probation without revocation.
(II) The defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based upon the disposition date and the term specified in the department’s records, the defendant appears to have completed their sentence, and at least one calendar year has elapsed since the date of judgment.
Despite many people’s convictions meeting these characteristics, in Mr. Reagan’s experience felonies and driving under the influence convictions are less likely to have been dismissed automatically. What is more, if a revocation of probation appears on the DOJ record, that person will have to file the petition with the court. Since there are so many convictions in California, the process of review is taking a long time.
Notably, Contra Costa County has a standing order stating that people who have been granted automatic dismissal cannot petition for dismissal with the court. The standing order dismisses any active Penal Code section 1203.4 petition filed in the case and forbids the filing of such a petition if the conviction had been automatically dismissed by the DOJ. But is this valid? No. Penal Code section 1203.45(a)(5) explains, “This section shall not limit petitions, motions, or orders for relief in a criminal case, as required or authorized by any other law, including, but not limited to, Sections 1203.4 and 1204.4a.” One reason a person might want a dismissal order signed by a judge rather than an automatic entry in the DOJ record is for immigration purposes. With a signed order, the person would not have to submit their entire California DOJ record to prove the case had been dismissed under Penal Code section 1203.4.
How does a person figure out if automatic dismissal has applied? First, check the online records site from the court of conviction. If the record is not available and the case is from the last 10 years, it is likely the entry has been removed because of automatic dismissal. The best way to check is to request a personal Department of Justice Background criminal history background report, available here: https://oag.ca.gov/fingerprints/record-review It’s a simple process that only requires a fee and fingerprinting. The final option is hiring an attorney to file the petition to dismiss, and then having the attorney check the DOJ record as part of due diligence. If an attorney is hired and intends to file a postconviction motion, they can request an unofficial report from the DOJ, which contains the exact same information as the official report.
Ultimately, for old cases a person should check if the conviction has been automatically dismissed. If not automatically dismissed, they will need to file a petition in the county of conviction or hire an attorney to help. For cases where parole was granted instead of probation, automatic review for dismissal does not apply.
