Federal and California Courts to Expunge the Conviction

While review 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.org 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, this 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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