Tooby's California Post-Conviction Relief for Immigrants

A simple form is available at the clerk’s office of many courts or through many adult probation departments.  The procedure can require from two weeks to six months or more, depending on local practice.  Sometimes no court appearance is required, for example in San Jose Municipal Court.  It is often possible to apply to the court for early termination of probation (usually after service of at least half the probation term), in order to enable expungement to occur for immigration purposes.  In some counties, the court will have the probation department verify that the requirements for obtaining the expungement are met.  The probation officer will sometimes be willing to make the motion for expungement after probation has terminated, or even apply for early termination, in the case of a deserving probationer.

            If a form is not available, or does not seem to meet the case of your client, draft your own simple petition for expungement under the appropriate Penal Code section, supported by a declaration from the client showing either (a) that s/he has met the formal requirements for an expungement, or (b) that many powerful equities indicate that s/he should be granted a discretionary expungement in the interests of justice.[207]

            PRACTICE TIP:  In some cases, counsel may not wish to use the court's forms, for example, if the client's case does not "fit" exactly within the requirements or the forms and counsel is asking for a favorable act of discretion.

[207] A discretionary expungement is technically available only under Penal Code § 1203.4 (probation cases), and not under Penal Code § 1203.4a (non-probation misdemeanors).