Realignment Expungements under Penal Code 1203.41
By Norton Tooby

In 2013, the California Legislature enacted a Realignment Expungement statute granting the court the discretion to expunge felony sentences in excess of one year imposed under the realignment legislation. See Penal Code 1203.41 (effective Jan. 1, 2014, added by Stats.2013, c. 787, A.B. 651, 1).

If the defendant is given a realignment felony county jail sentence in excess of one year, pursuant to Penal Code 1170(h)(5), the court has discretion to grant an expungement in the interests of justice analogous to that available to probationers under Penal Code 1203.4(a). This new statute provides: The court may permit the defendant to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty, or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty, and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. Penal Code 1203.41(a)(1). This expungement may be granted after the expiration of one year following completion of a split sentence, under Penal Code 1170(h)(5)(B) (in which a concluding portion of the sentence is suspended, and the defendant released for the balance of the term on postrelease community supervision), or after the expiration of two years following completion of a full-term sentence under Penal Code 1170(h)(5)(A). Penal Code 1203.41(a)(3). The relief available under this section may be granted only if the defendant is not under supervision [during service of a split sentence], and is not serving a sentence for, on probation for, or charged with the commission of any offense. Penal Code 1203.41(a)(3).