Expungement – Not a License Discipline Cure-All

Californians are able to get relief from certain criminal baggage through a process that we commonly call “expunging” a record.  However, unlike in some states, this process does not completely wipe the slate clean.  On the contrary, it only relieves a person from the criminal penalties of their actions, which leaves out a lot more in life.
California Penal Code 1203.4 can provide an individual who has completed probation the ability to withdraw a guilty or nolo contendere (no contest) plea and replace it with a plea of not guilty or, if there has already been a conviction,  the court may set aside the conviction and dismiss the charges.  This is, to some, the first step in making a petition for a certificate of rehabilitation or pardon.  While many do not read the fine print, the order granting relief under 1203.4 states that the order does not relieve the individual of the obligation of disclosing the conviction in response to any direct question in a questionnaire or application for public office, state or local licensure, or contracting with the California State Lottery.[1]
California case law makes clear what otherwise may not be clear.  Expungement does not render the conviction a legal nullity.[2]  It “does not eradicate a conviction or purge a defendant of the guilt established thereby.”[3]  The prior conviction may also be used to impeach, for deportation proceedings, or for sentencing under U.S. Sentencing Guidelines.[4]
A person convicted of a crime may use section 1203.4 for relief, then follow by seeking a certificate of rehabilitation or a grant of pardon by the Governor[5].  Yet neither the certificate nor the pardon can impair “…the power or authority of any board that issues a certificate which permits any person or persons to apply his or her or their art or profession on the person of another.”[6]
So, a felony which has been expunged must still be reported on any application for state or local licensure or registration, or in any applications for lottery vendor contracts.  While the original crime itself may not constitute grounds for disqualification for licensure, failure to report it surely is.
In addition, sometimes agencies are required to deny applications in which applicants have a conviction for a felony, even if expunged, with regard to disclosed expunged misdemeanors (under Penal Code section 1203.4a). Otherwise, it may be discretionary as to whether or not a license or registration is granted.  This also applies for discipline of an existing license.  It may behoove an applicant or licensee to inquire whether or not the felony could be reduced to a misdemeanor pursuant to Penal Code section 17, subdivision (b), before requesting relief under 1203.4.  If the court reduces the conviction, it changes the record of conviction from a felony to a misdemeanor and from that moment onwards the conviction is treated in all respects as a misdemeanor.[7]


[1] Many licensing agencies rely on section 7.5 of the Business and Professions Code, which defines conviction as a plea or verdict of guilty or a plea of nolo contendere, irrespective of a subsequent order under Penal Code 1203.4.
[2] Los Angeles County Dept. of Children & Family Services v. Superior Court (2003) 112Cal. App. 4th 509, 518.
[3] People v. Barraza (1994) 30 Cal. App.4th 114.
[4] People v. James (1940) 40 Cal.App.2d 740; Wood v. Hoy (1959) 266 F.2d 825; Garcia-Gonzales v. INS (1965) 344 F.2d 804 (cert denied (1965) 382 US 840); United States v. Hayden (2001) 255 F.3d 768.
[5] Penal Code section 4852.01 et seq..
[6] Penal Code section 4853.  See also section 4852.15.
[7] The change is not retroactive, however.  See Coffey v. Superior Court (2005) 129 Cal.App.4th 809.
Credit:  Thanks to Sacramento County Bar Association’s Administrative Law Section Chair Heather Cline Hoganson for her article on Expungement in the Sacramento Lawyer May-June 2012 Magazine.