Federal and California Courts Define Expungement


While reviewing recent cases, Darren Chaker found multiple courts determined expungement and sentencing guidelines. One court has already concluded that the set-aside provision contained in California Penal Code § 1203.4 is an expungement under California law. The Hidalgo opinion noted that California courts consistently refer to Welfare and Institutions Code § 1772, the set-aside provision for juvenile offenders, “as a rule ‘expunging’ a prior conviction. [Citations omitted.]” 932 F.2d at 807. The court concluded both the federal and California definition of “expunge” includes the set-aside language contained in California Welfare and Institutions Code § 1772(a). See also, http://darrenchaker.us for additional expungement information. Nonetheless, the set-aside conviction was “expunged” under USSG § 4A1.2(j) and could not be counted as a prior conviction under the sentencing guidelines. Id.

As explained above, the set-aside provisions of California Penal Code § 1203.4 are nearly identical to those considered in Hidalgo. These two set-aside provisions were also described as similar in Adams v. United States, 299 F.2d 327, 331 (9th Cir. 1962). Moreover, both California and federal cases refer to California Penal Code § 1203.4 as one of expungement.

The First Circuit has described § 1203.4 as a procedure to obtain “relief from all penalties and disabilities resulting from [the defendant’s] conviction.” United States v. Cunha, 209 F.2d 326, 330 (1st Cir. 1954). In In re Paoli, 49 F.Supp. 128 (N.D.Cal. 1943), the district court held:

“The privileges provided for by the State in § 1203.4 … expunge the record of the crime, … for technically there is no-formal record remaining of a conviction.” Id. at 130.

More recently, the court, in Paredes-Urrestarzau v. U.S. Immigration & Nat. Service, 36 F.3d 801 (9th Cir. 1994), held that “expunging” a conviction under § 1203.4 does not prevent proof of the bad act to determine moral character in a deportation case because:

“‘conviction’ within the meaning of the INA [Immigration and Naturalization Act] is ‘a matter of federal immigration law, not a matter of state law.”’ Id. at 808.

Paredes-Urrestarzau held that an immigration court is not required to disregard the fact of the prior conviction expunged under § 1203.4 in determining the good moral character of an applicant for citizenship. Id., quoting In re Paoli, 49 F.Supp. at 130-31.

Again in Carr v. Immigration & Nat. Service, 86 F.3d 949 (9th Cir. 1996), the alien/defendant requested delay in deportation proceedings in order to “receive an expungement of his conviction under California Penal Code § 1203.4.” Id. at 950. The court held that the INS is entitled to treat different offenses differently, and to recognize expungement of some and not of others because the federal immigration service is not required to defer to state expungement definitions or regimes. Id. at 952.

Finally, the court again stated in United States v. Qualls, 108 F.3d 1019 (9th Cir. 1997), that § 1203.4 is an expungement of the conviction. In considering the effect of such an expungement, the court explained:

“Under California law, when a court terminates a defendant’s probation before the probation period has expired, the defendant is entitled to withdraw his guilty plea, have the accusation or information against him dismissed and be released from all penalties and disabilities resulting from the conviction. Cal. Penal Code § 1203.4. A defendant must petition the court for such expungment [sic].” Id. at 1022.

The court -denied relief in that case because the defendant had never obtained the expungement order under § 1203.4. Id. But the court grounded its analysis in a thorough review of applicable California Supreme Court precedent.

And as was observed in Hidalgo, the definition of “expunged” must be made by reference to the state expungement regime as well as the federal definition. Hidalgo, 932 F.2d at 807; see also Paredes-Urrestarzau v. U.S. Immigration & Nat. Service, 36 F.3d at 813-14. California courts, as noted in Hidalgo, consistently refer to the set-aside-provisions of California Penal Code § 1203.4 as “expungement.”

In People v. Banks, 53 Cal.2d 370, 1 Cal.Rptr. 669 (1959), quoted in Qualls, 108 F.3d at 1023, the California Supreme Court held as follows:

“where probation has been granted and the proceedings have been suspended without entry of judgment, is subject to no disabilities whatsoever except those specifically declared by some other provision of law or affirmatively prescribed by the court as terms or conditions of *21 probation. The probationer … still retains his ordinary civil rights, unless the court has restricted them, ….” Id. at 386-87 (emphasis added).

Subsequent case law bears this out:

“section 1203.4 confers the benefit of expungement to a defendant who successfully fulfills the conditions of probation, ….” People v. Shroff, 77 Cal.App.4th 663, 668; 91 Cal.Rptr.2d 834 (2000).

Again in People v. Acuna, 77 Cal.App.4th 1056; 92 Cal.Rptr.2d 224 (2000), the court recited:

“section 1203.4 allowed him [defendant] to apply to the court after his probation ended to have his conviction expunged.” Id. at 1058.

Other California opinions-have described relief under this section as “record clearance.” People v. Lugas, 76 Cal.App.4th 696, 705, 91 Cal.Rptr.2d 11, (1999). California judicial references to § 1203.4 relief as expungement are legion. See, e.g., People v. Fioretti, 54 Cal.App.4th 1209, 1212, 63 Cal.Rptr.2d 367 (1997); People v. Daniels, 51 Cal.App.4th 520, 525, 59 Cal.Rptr.2d 395 (1996); People v. Diaz, 41 Cal.App.4th 1424, 1429, 49 Cal.Rptr.2d 252 (1996). Even the district court’s denial of defendant’s habeas petition notes that Adams v. County of Sacramento, 235 Cal.App.3d 872, the decision it relied on to deny relief, “uses the terms ‘expunge’ and ‘set aside’ interchangeably.” CR 1832, ECR 36.

There really is no dispute that California treats relief under § 1203.4 as expungement. And federal precedent requires similar treatment for this reason and also under the Ninth Circuit’s interpretation of sentencing guideline requirements. See Hidalgo, 932 F.2d at 807. The district court did not allow defendant to reopen his sentencing hearing because it misconstrued the law of the State of California as well as the law of the Ninth Circuit.

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For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.