In California, the process of expunging or clearing a criminal record is usually called "dismissal," because the case is reopened and the criminal conviction is dismissed. For legal purposes, if your conviction is dismissed, it is as though you never committed the crime. Your record will be changed to reflect the dismissal, and you usually do not have to disclose that you were convicted—for example, when applying for a job. In fact, it is illegal for most employers in California to ask about an arrest that did not result in a conviction or a conviction that was later dismissed (expunged). There are exceptions, such as for jobs with police departments or other criminal justice agencies, or positions that require access to drugs or firearms. (Cal. Penal Code §§ 851.91, 1203.4 (2019); Cal. Labor Code § 432.7 (2019).)
Below are the circumstances under which an arrest or conviction may be cleared in California.
Although most employers are prohibited from asking about arrests that do not result in convictions, you may still want to have your arrest record sealed. Your arrest record qualifies for sealing under the following circumstances.
If you can prove that you were “factually innocent” of the charged crime. You must prove that there were no reasonable grounds to arrest you in the first place; the fact that you weren’t convicted doesn’t establish your innocence. If you believe that you qualify for a declaration of innocence, you will need the help of an attorney to make your case. (Cal. Penal Code § 851.8 (2019).)
If your arrest did not result in conviction or your conviction was vacated and reversed on appeal. You may petition to have your record sealed at any time if:
However, your arrest record is ineligible for sealing if:
(Cal. Penal Code § 851.91 (2019).)
You were convicted of a misdemeanor or felony and were sentenced to probation. You may petition for a dismissal if you were convicted of a misdemeanor or felony, were sentenced to probation, and have satisfied all the conditions of your sentence. Your conviction will not be dismissed if you are currently charged with, on probation for, or serving a sentence for another offense. You are also not eligible for a dismissal if you have committed a sex crime against a minor, or certain offenses under the California Vehicle Code. (Cal. Penal Code § 1203.4 (2019).)
You were convicted of a misdemeanor or felony, were sentenced to probation, and the court agrees to dismiss it. The following offenses may be dismissed if you can convince the court that a dismissal is in the interests of justice:
(Cal. Penal Code § 1203.4 (2019).)
You were convicted of an infraction or a misdemeanor and received a sentence other than probation. You may petition for a dismissal if you were convicted of an infraction or a misdemeanor and were sentenced to anything other than probation. You must successfully complete all terms of your sentence and wait at least one year from the date of entry of judgment in your case to apply. Your conviction will not be dismissed if you are currently charged with or serving a sentence for another offense. (Cal. Penal Code § 1203.4a (2019).)
You were convicted of a felony and sentenced to county jail. You may petition for a dismissal if you were convicted of a felony and were sentenced to county jail. If your sentence included mandatory supervision, you must wait at least one year after completing all terms of your sentence to apply; if your sentence did not include mandatory supervision, the waiting period is two years. Your conviction will not be dismissed if you are currently charged with, on probation for, or serving a sentence for another offense. (Cal. Penal Code § 1203.41 (2019).)
You were convicted of a felony and sentenced to state prison. You may petition for a dismissal if you were convicted of a felony before October 1, 2011, were sentenced to state prison, and now, under California’s current laws, your conviction would be eligible for sentencing to a county jail. You must wait two years after completing your sentence to apply. Your conviction will not be dismissed if you are under supervised release or currently charged with, on probation for, or serving a sentence for another offense. (Cal. Penal Code § 1203.42 (2019).)
If you were convicted of a felony and sentenced to state prison under any other circumstances, your conviction is not eligible for a dismissal. You may instead request a Certification of Rehabilitation (a court order declaring that a person has been rehabilitated) and pardon from the governor. (Cal. Penal Code §§ 4852.01-4852.21 (2019).) Neither a Certification of Rehabilitation nor a pardon erases or seals a criminal record.
You have completed a diversion program. After successful completion of a diversion program, you may petition to have your record sealed. (Cal. Penal Code §§ 851.87, 851.90 (2019).)
You were charged with possession of marijuana. You might not need to petition for dismissal if you were arrested for or convicted of marijuana possession or transporting or giving away 28.5 grams or less of marijuana. Such convictions, if entered after January 1, 1976, should be erased from your criminal record after two years. Note that this does not include convictions for growing or selling marijuana or transporting more than 28.5 grams of marijuana. (Cal. Health & Safety Code § 11361.5 (2019).)
Vacating a Conviction When Immigration Consequences Not Explained or Defendant Has Evidence of Actual Innocence
As of January 1, 2017, certain criminal defendants who have served their sentences may go back to court and ask that their convictions be "vacated." If the request is granted, the court will withdraw their guilty or "no contest" pleas and the case will start over. This opportunity is available only to defendants who can show that they did not meaningfully understand the immigration consequences of their pleas, or that evidence of newly discovered innocence requires that the conviction be vacated. Vacating a conviction is not the same as sealing or expunging the court record; instead, it takes the parties back to the point of arraignment, and the case will proceed from there. For more information, see our article, "Vacating a Criminal Conviction in California." (Cal. Penal Code § 1473.7 (2019).)
Clearing up your criminal record can be complicated, and the law can change at any time. To learn more about having your conviction dismissed, including how to file for dismissal, see Cleaning Your Record at the California Courts Self-Help Center. Contact the public defender’s office in your county or consult an experienced criminal defense attorney to discuss your personal circumstances and get help expunging your criminal history.