Yesterday, Governor Brown finished his review of legislation passed at the close of this year’s Legislative session. The good news is that he signed one bill that will allow a greater number of people to seek expungement of their felony convictions. The bad news is he vetoed another bill that would have expanded the ability to misdemeanor defendants to avoid a conviction by agreeing to a diversion program.
First, the good news. Under existing law, the only people who can seek expungement of their felony convictions are those who receive probation. (Note: contrary to popular belief, probation does not mean “no jail.” Felony probation often includes a jail term of up to one year.) If probation is denied, and the defendant is sentenced to prison or jail (usually for a term of 16 months or more), the defendant is not eligible for expungement. The new law (AB 651) allows defendants to seek expungement if probation was denied and they were sentenced to county jail. (These are the people with low-level felonies who would have gone to state prison before 2012, but who now serve their sentence locally under California’s new realignment law.) These defendants can apply for expungement either one or two years after completing their sentence, depending on the type of sentence the judge imposed. Expungement for these defendants is not automatic. The judge reviewing the expungement petition will have the discretion to grant or deny it.
AB 651 does not affect those who are denied probation and sentenced to state prison. They still remain ineligible for expungement. If these defendants want to lessen the impact of their convictions, they must pursue the more complicated process of seeking a certificate of rehabilitation and/or a pardon from the Governor.
Unfortunately, though, the good news involving the expungement law was overshadowed by the Governor’s veto of SB 994. This bill would have required all district attorneys in California to enact diversion programs that would have allowed virtually all first-time misdemeanor defendants (but not those charged with DUI or domestic violence) to avoid conviction by participating in the program.
In Orange County, the DA’s office offers this type of diversion in many cases, so the impact of this veto won’t be as significant. But SB 994 would have allowed judges to grant diversion even when the district attorney didn’t want to allow it.