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More on Expungement

The text of California Penal Code, Section 1203.4 P.C. is below, which is the California expungement statute.  

There has been much debate about the matter, and hopefully this will help folks who have a concern on the matter.

Specifically, if you file a job application for employment in a city you will be fingerprinted for any position (from janitor to safety).  If you file an application for a county, you may be fingerprinted.   In addition, you have to be cleared by a background process, which is mandated by State Law for all safety and "peace officer" positions in any city, county, or state safety position.

You must follow the rules in completing the job application, which varies by city.  If the job application specifically states you must document all convictions, including those expunged under 1203.4 P.C. and other various H&S codes for drug (marijuana) possession, you must declare the conviction(s).  If the application states you must declare all arrests, detentions, and convictions (generally non-traffic offenses under $100.00), you must declare.

If the job application states you must declare all convictions, but does not specifically state those expunged under 1203.4, or arrests and detentions, then you do not have to declare the conviction, and you are not lying - an expungement is a clearing of your criminal record only - not the data - which are 2 separate issues.

Let me make what has already been stated clear - your records NEVER go away and are discoverable.  The real issue is making sure you are following the letter of the law when you are being asked to provide information.

If the job application is not clear, then the city has created a liability, I would suggest all cities review the applications, since they vary significantly.

HOWEVER - be advised that what Chief Lepore has stated is correct from a perception standpoint.  You may be perceived as lying or "evasive" and this can eliminate you from any further consideration.  Perception is reality.  You can be dead right - you're right, but your dead from any further consideration!  

Under state law, you need only report an expunged conviction as follows under 1203(a):

"...the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency..."

Additionally, the California Department of Justice maintains the California Criminal Information Database that records all arrests, detentions (arrests w/o convictions, and convictions of misdemeanors and felonies, and probation.  

DOJ holds all arrest records for life, all misdemeanor convictions for 10 years, and all felony convictions for life.   Any peace officer who is authorized, and pulls your data will see your arrests, detentions, and convictions.  This also applies to drug and alcohol diversion programs, which may show while you are clear on diversion, your arrest/detention stands!

I would suggest to all applicants who have had a brush with the law, that you pick up a "State Summary Criminal History Record" application from the DOJ.  They have a public record review process where you can go to the local police station get yourself fingerprinted and review your own criminal record data yourself.  You can view the records, but you cannot take or possess them.   For more information (taken directly from the DOJ website):

You may request a copy of your own Criminal History Record from the California Department of Justice by preparing and submitting the following:

A completed "Application to Obtain Copy of State Summary Criminal History Record" or a letter outlining your request containing your full identification name, maiden name, aliases, mailing address, date of birth and telephone number.

The application form is available from any police department, sheriff's office or the state Department of Justice.

A full set of your fingerprint impressions on a 10-print fingerprint form;
A $25.00 processing fee paid by personal check drawn on a California bank only, money order or certified check made payable to the "California Department of Justice".
Mail your request and required materials to the Bureau of Criminal Identification and Information, California Department of Justice, ATTN: Record Review Unit, P.O. Box 903417, and Sacramento, CA 94203-4170.

If you have questions, contact the department's Applicant and Public Services Section at (916) 227-3823.

I would also suggest that you get some basic legal advice and take care of your past, so your background is bullet proof.  Sure we all make mistakes, but you don't want to make mistakes midway through a background process and fail, which creates more problems for you.  Answer the questions put before and show NO evasion, or you are toast.

Technically, you are not lying if you do not report the conviction under 1203.4, however, if you do not report the arrest or conviction under a direct question - you will likely drop from any further consideration.

If the background investigator presents your criminal record data and you have an expungement, you can confidently state that you are not bound to report the conviction under 1203.4 P.C., based on the application question, if they ask any questions about the matter, be prepared to be forthright and completely honest or you are toast.

Also, most backgrounds have a paper process, while you may not have disclosed your conviction on the application, the background paper inventory probably will ask very specific background questions that require disclosure under 1203.4, and if you fail there to mention the issue, then you are toast.

California Penal Code Section 1203.4 (P.C.):

1203.4.(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant  should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she
is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and
except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been  convicted, except as provided in Section 13555 of
the Vehicle Code.  The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon.

The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other
offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.  The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.

Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in  is or her custody or control any firearm or prevent his or her conviction under Section 12021.

This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.

(b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, any felony
conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.

(c) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the county for the actual cost of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred twenty dollars ($120), and to reimburse any city for the actual cost of services rendered, whether or not the petition is
granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred twenty dollars ($120).  Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person's eligibility under this section.  The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any
portion of the cost for services established pursuant to this subdivision.

(d) No relief shall be granted under this section unless the prosecuting attorney has been given 15 days' notice of the petition for relief.  The  probation officer shall notify the prosecuting
attorney when a petition is filed, pursuant to this section.  It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.

(e) If, after receiving notice pursuant to subdivision (d), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.

(f) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288,
subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.

END
 

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