California Expungement and Federal Sentencing

Darren Chaker reveals there are two distinctions between the expungement provisions construed in United States v. Hidalgo, 255 F.3d 768, and those contained in California Penal Code § 1203.4(a). The first is that an expungement under § 1203.4(a) releases a defendant from all criminal penalties and disabilities “except as provided in Section 13555 of the Vehicle Code [related to suspension or revocation of driving privileges].” This is an explicit exception to the expungement statute such that, for example, a defendant whose driving privileges has been revoked may not regain driving privileges by virtue of expungement of the criminal conviction which caused the revocation. This exception has not application here.

The second distinction of § 1203.4 is the proviso in § 1203.4 providing for revival of an expunged conviction for purposes of pleading and proving an enhancement in a subsequent prosecution:

“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.”

This exception has no application here either. This statutory language refers to specific procedures under California law for pleading and proving prior convictions. The “pleading and proving” prerequisite is in conformance with California statutory law which requires that a prior conviction may be used to enhance a sentence only if it is pleaded and proven; moreover, it is well-established that California law requires the defendant be given an opportunity to demand trial of the conviction before a jury:

“California … has granted defendants the right to have a jury determine the truth of such prior conviction allegations. [Citation omitted].” People v. Wiley, 9 Cal.4th 580, 590, 38 Cal.Rptr.2d 347 (1995); People v. Esquibel, 3 Cal.App.4th 850, 858, 5 Cal.Rptr.2d 47 (1992).

Thus, the requirement under § 1203.4(a) that the expunged conviction is revived only by pleading and proving the prior conviction in a subsequent prosecution means that without following the California procedure for proof of such prior convictions, the expunged conviction has not been revived.

Furthermore, under California law, as well as the general common law, the statute should be construed according to the maxim expressio unius est exclusio alterius:

“It is a familiar maxim of construction that where a statute provides a specific exception to a general rule, other exceptions are necessarily excluded.” Adams v. County of Sacramento, 235 Cal.App.3d 872, 880, 1 Cal.Rptr.2d 138 (1991) (discussing application of Penal Code § 1203.4 to employment status case).

Thus, there is no exception to the use of an expunged conviction as an enhancement in a subsequent case apart from the pleading and proof requirements set forth in § 1203.4(a). And this comports with current treatment of the subject by the United States Supreme Court.

The Supreme Court has reaffirmed that a right to jury trial extends to enhancements alleged against a defendant based on prior convictions. in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the United States Supreme Court held that

“under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id., at 243, n. 6.

Although Jones made an exception for a prior conviction alleged as an enhancement, it did not discuss the proof of a prior conviction which has already been expunged. Under California Penal Code § 1203.4(a), once the prior conviction has been expunged, it must be pleaded and proven anew in order to be used as an enhancement against the defendant in a subsequent prosecution. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court held,

“it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. it is equally clear that such facts must be established by proof beyond a reasonable doubt.” Id. at 2363, quoting Jones v. United States, 526 U.S. at 252-253.

Thus, under current Supreme Court treatment of recidivist punishment, as well as California statutory and case law, the revival of an expunged prior conviction would seem to present an issue of fact which must be determined by a jury.

Section 1203.4 freed defendant of all criminal “penalties and disabilities,” unless the prerequisites listed in the expungement statute itself are met. The two prerequisites are that an expunged conviction may be revived only for purposes of a future prosecution and only by the procedure of pleading and proving the prior conviction according to California law. § 1203.4(a). Neither prerequisite was here met.

The proviso of § 1203.4 that the prior conviction may be “pleaded and proved” in spite of the expungement establishes that without formal proof of the prior conviction, the set-aside continues to serve as an expungement. California law provides that a prior conviction must be alleged and proved before a jury in order to be counted as a prior conviction in a subsequent prosecution. Under Apprendi, the California procedure setting forth the means to count the prior conviction in a subsequent prosecution requires strict compliance with procedural due process. 120 S.Ct. at 2359.

So unless and until the prior convictions have been “pleaded and proved” in accordance with the revival mechanism set forth in § 1203.4, defendant’s expungements are indistinguishable from the expungement under-the provisions of California Welfare and Institutions Code § 1772(a), which Hidalgo held do not count as prior convictions under the sentencing guidelines. Hidalgo, 932 F.2d at 807. The expunged convictions were not revived and may not, therefore, be counted towards defendant’s criminal history score.

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