Posted on August 4, 2017

Can I Reduce a Felony to a Misdemeanor After an Expungement?

Most attorneys and even judges will say “no.” The rational is that the court loses jurisdiction over the case after the court dismisses the conviction under section 1203.4. However, this is incorrect, a defendant is still eligible to reduce their felony conviction to a misdemeanor after receiving the benefits of an expungement.

In Meyer v. Superior Court (1966) 247 Cal.App.2d 133, the question presented was whether the petition is barred from making an application under Penal Code section 17(b) after his record was expunged under Penal Code section 1203.4. The court considered the language “thereafter” in PC 17(b) and concluded the term is not barred by any time limit. Moreover, in conferring upon the court the power to declare an offense to be a misdemeanor after it has suspended imposition of judgment, the legislature evidentially intended to enable the court to reward a convicted defendant who demonstrates by his conduct that he is rehabilitated.

While dismissing the conviction under section 1203.4 relieves a defendant from all penalties and disabilities, it cannot be assumed that the legislature intended to obliterate the fact that the defendant had been convicted of a crime. Thus, a conviction which has been expunged still exists for limited purposes, including, among others, evidentiary use at a later trial, denial of the right to carry or possess a firearm. Consequently, since the conviction still technically remains, a person should not be barred from pursuing a more suitable remedy, particular where the final decision as to whether he is worthy rests within the sound discretion of the superior court.

Likewise, in People v. Tidwell (2016) 246 Cal.App.4th 212, the court held that a petitioner, after expunging their conviction under section 1203.4, did not preclude subsequent reduction of the conviction to a misdemeanor under Proposition 47. The court noted that section 1203.4 does not, strictly speaking, expunge the conviction, nor render the conviction a legal nullity. (Id. at p. 217.) After examining section 1203.4 and section 1170.18, keeping in mind the intent of the legislative body in adopting Proposition 47, the court determined that “to foreclose a defendant’s eligibility based on the section 1203.4 dismissal would contravene [the legislative bod’s] intent, where defendant has met the criteria under section 1170.18 according to the terms of the statute.” (Id. at p. 219.) The court held that the trial court erred in rejecting defendant’s petition for redesignation under Proposition 47 noting that the “statutory dismissal that defendant obtained did not expunge his record or cancel the potential for continuing or future consequences of those conviction…” (Id.)

Accordingly, the above cited cases stand for the proposition that section 1203.4 does not preclude a person from later seeking reduction under either proposition 47 or under section 17(b). For more information or to schedule a free confidential consultation, contact an Orange County criminal defense attorney at the Law Offices of John D. Rogers.

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