Ottone Leach Olsen & Ray LLP

When applying for a job, many employees may fear that question on the application form that asks: “Have you ever been convicted of a felony?” That fear may be well-founded as some employers are reluctant to hire an individual with a criminal record. There are, however, methods by which some people may be able to have their adult or juvenile records sealed or expunged.

Under California Penal Code §1203.4, an individual who is not on probation, in jail or charged with a crime may petition the court to:

• withdraw a plea of guilty or no contest and enter a plea of not guilty; or,
• if he or she has been convicted after pleading not guilty, request the court to set aside the verdict of guilty.

In either case, the court may dismiss the accusations or information against the individual and, with the exception of certain Vehicle Code provisions, release him or her from all penalties resulting from the crime of which he or she has been convicted, provided that certain conditions are met. Practically speaking, a judge will not grant such a petition unless the individual has shown good conduct and reform for a substantial period of time, perhaps ten to 15 years.

If the criminal record was obtained while an individual was a juvenile, Welfare and Institutions Code §389 provides that the person may petition the court to seal any records, including records relating to the person’s arrest, that are in the custody of the juvenile court, the probation office and any other agencies, including law enforcement agencies and public officials who have custody of such records, when certain conditions have been met.

The court will seal the record of the person’s juvenile case if the court finds that:

• the individual has not been convicted of a felony or of any misdemeanor involving moral turpitude; and
• rehabilitation has been attained to the satisfaction of the court.

Once the record is sealed, it will be as if the proceedings in the case never occurred.

In either situation, once all of the conditions have been met, the individual may petition the court for a certificate of rehabilitation and pardon. Once the petition is approved, an applicant for employment may answer the dreaded question with a resounding “NO”. This section does not, however, relieve any individual 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.

The above is a summary of the rights provided to some individuals with a criminal record. Anyone needing legal advice regarding the procedure to be followed to have a record expunged should contact an attorney competent in the area of criminal law.