Post-Conviction Relief for Immigrants

A motion to reduce a felony to a misdemeanor may be granted, even after the conviction has previously been expunged pursuant to California Penal Code § 1203.4(a).[442]  In Meyer, the defendant had been convicted of a “wobbler” as a felony in 1960, and had his conviction subsequently expunged pursuant to California Penal Code § 1203.4.  He then attempted to have his felony reduced to a misdemeanor pursuant to California Penal Code § 17(b), which was modified in 1963 to include the reduction language and probation language that California Penal Code § 17(b)(3) has today.  The trial court refused, stating it had no jurisdiction.  The court of appeal held that the statute, while arguably not retroactive, was merely restating the power that a California judge already possessed, and that, of course, a conviction may be reduced even well after a granting of an expungement under California Penal Code § 1203.4.

            The expungement of the record under section 1203.4 is also a reward for good conduct and has never been treated as obliterating the fact that the defendant has been convicted of a felony.  [Citation.] . . . The power of the court to reward a convicted defendant who satisfactorily completes his period of probation by setting aside the verdict and dismissing the action operates to mitigate his punishment by restoring certain rights and removing certain disabilities.  But it cannot be assumed that the legislature intended that such action by the trial court under section 1203.4 should be considered as obliterating the fact that the defendant had been finally adjudged guilty of a crime.[443]

Even though a conviction has been expunged, a person should not be barred from pursuing a more suitable remedy, particularly where the final decision as to whether to grant it rests within the sound discretion of the superior court.[444]

[442] Meyer v. Superior Court, 247 Cal.App.2d 133 (1966).

[443] Ibid., p. 139-140.

[444] Ibid.