If an Expungement Will Not Solve the Particular Immigration Problem, It is Still Possible to Pursue Other Post-Conviction Relief After an Expungement Has Been Obtained.

Because expunged convictions continue to exist for some purposes, it is still possible, even after an expungement under Penal Code 1203.4(a) has been obtained, to attack the conviction through other post-conviction vehicles, such as a petition for a writ of coram nobis. (People v. Wiedersperg (1975) 44 Cal.App.3d 550, 118 Cal.Rptr. 755.) Even after expungement has been granted, the court still has jurisdiction to reduce an alternative felony misdemeanor to a misdemeanor under Penal Code 17. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 55 Cal.Rptr. 350.) The same should logically hold true for other forms of post-conviction relief, such as habeas corpus and the like.

In Meyer v. Superior Court (1966) 247 Cal.App.2d 133, a Penal Code 17(b) motion to reduce a conviction from a felony to a misdemeanor was granted after relief under Penal Code 1203.4 had already been obtained. The defendant had been convicted of an alternative felony/misdemeanor (a wobbler) as a felony in 1960, and his conviction had subsequently been expunged pursuant to Penal Code 1203.4(a). He then tried to have his felony reduced to a misdemeanor pursuant to Penal Code 17(b), which had been modified in 1963 to include the reduction language and probation language that Penal Code 17(b)(3) contains today. The trial court refused, stating it had no jurisdiction because an expungement under Penal Code 1203.4(a) had already been granted. The appellate court ruled that the statute, while arguably not retroactive, was merely restating the power that a judge in California already possessed, and that a conviction may be reduced even well after a granting of a Penal Code 1203.4 expungement. Penal Code 17(b) states that a felony may be reduced to a misdemeanor "at any time."

Neither the probation statutes nor the cases applying them support a holding that expiration of the probationary period terminates the court's jurisdiction of the subject matter. The statutes themselves contemplate that the courts fundamental jurisdiction continues, for they provide for the court's determination of certain matters after the end of the probationary term. (In re Griffin (1967) 67 Cal.2d 343, 62 Cal.Rptr. 1.)

Penal Code 17 provides, Where a court grants probation to a defendant without imposition of sentence upon conviction of a crime punishable in the discretion of the court by imprisonment in the state prison or imprisonment in the county jail, the court may at the time of granting probation, or, on application of defendant or probation officer thereafter, declare the offense to be a misdemeanor. The court's power and duty to pass on such an application for reduction of the offense to a misdemeanor continues after the end of the probationary term. (In re Griffin (1966) 67 Cal.2d 343, 347.)

The court is empowered to change a crime from a felony to a misdemeanor, and it may do so after the probationary period has expired, and after the probationer has had his record expunged under Penal Code 1203.4. (Meyer v Superior Court (1966) 247 Cal.App.2d 133.)

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. . . . (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140.)

Although a conviction has been expunged, a person should not be barred from later pursuing a more suitable remedy, particularly where the final decision as to whether he is worthy rests within the sound discretion of the superior court. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140.)

Similarly, the court of appeal held that the expungement of a conviction under Penal Code 1210, after successful completion of Prop. 36 drug treatment, did not render her appeal from the judgment of conviction to be moot, holding she is entitled to an opportunity to clear her name and rid herself of the stigma of criminality. (People v. Delong (2002) 101 Cal.App.4th 482, 124 Cal.Rptr.2d 293.)