Legal Question in Criminal Law in California

My son has a strike against him. When he was 19 years old he was convicted with a felony charge of arson in Lodi Ca.. He is now 24 and expecting a child and trying to get a better job but his background checks are preventing him to do so.

Can this strike ever be removed from his record and what can he do in order to clean up his legal record so he can improve his life?

Michelle Menchaca

Asked on 9/30/09, 1:07 pm

2 Answers from Attorneys

Robert Marshall Law Office of Robert L, Marshall

If he is ever charged with another felony in the future, the strike conviction could be used to increase the punishment. There are limited ways to get relief for this conviction, but nothing will truly clean up his record.

Under Penal Code 1203.4, a person who is granted probation can apply to have the case dismissed after probation is complete. This is sometimes called an expungement, but it doesn't really expunge anything or seal his record.

The conviction is still a part of the court's public records, which will also show the case was dismissed. He would still have to disclose disclose the conviction when applying to be a police officer or for certain other jobs, or if asked on an application for a state license or to run for public office. It will not restore his right to own a firearm or relieve him of the requirement to register as an arsonist.

BEWARE of law firms that promise to "clear your record" and charge thousands of dollars. The process of filing a Penal Code 1203.4 petition is pretty simple, and he can do it yourself with forms available from the court clerk's office, especially if he completed probation without any problems. If he had a probation violation along the way, he may want an attorney's help, but the guys who charge thousands to file simple paperwork will probably overcharge him for that, too.

California Labor Code 432.7 says employers can't ask about any arrest that didn't result in a conviction, inquire about it from other sources or use it in a hiring decision.

Some attorneys interpret this Labor Code section to mean you don't have to disclose a conviction that was dismissed under Penal Code 1203.4, but I usually advise clients to disclose it, with an explanation that the conviction was subsequently dismissed.

A 1203.4 dismissal will not prevent the strike from being used against him in a future felony prosecution.

Under California's Three Strikes law, the sentence is increased if a person is convicted of ANY new felony and the prosecution proves he or she has prior "strike" convictions.

Strikes are the serious felonies listed in Penal Code 1192.7(c) and the violent felonies listed in Penal Code 667.5(c).

If he is convicted of ANY new felony and ONE prior "strike" conviction is charged and proven:

1) He is not eligible for probation.

2) His sentence will be doubled.

3) If his new offense is a non-violent felony, he would will have to serve 80% of his sentence, instead of half, before being paroled. (People sent to prison for a violent felony have to serve 85% whether they have a prior "strike" or not.)

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Answered on 9/30/09, 3:06 pm

Brian Dinday Law Offices of Brian R. Dinday

Whether he pleaded guilty or was convicted at trial, it is too late to remove the conviction, except by a Penal Code Section 1203.4 motion, which will not help him much. By that statute, as long as he successfully completed probation, he could answer "No" to the question about prior convictions. However, as you know, employers check his background and the Dept. Of Justice report will show the arrest, the conviction and the vacating of the conviction, so employers will still know.

What I tell clients in your son's position is that they would be well advised to pursue a career as a self employed person. I don't know what he does, but there is darn little that a company can hire you to do that you cannot do yourself. Otherwise, this conviction will hold him back his whole life. He is young, so training for a self employed career is well worth the time and expense for him. I mean, who checks your criminal background when they hire you to fix your computer?

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Answered on 9/30/09, 3:21 pm

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