Restitution and Expungement in California

If you have been convicted of a crime in California, you may be able to get the conviction dismissed from your record. While such a dismissal—commonly known as expungement—will not erase the underlying conviction (only a pardon can do that), it can make your life easier if you are looking for work. Under California law, a private employer cannot ask you to disclose a conviction that has been expunged, and government employers and licensing agencies must treat individuals with an expunged record the same as if they had not been convicted of a crime.

Court Denies Expungement Over Failure to Pay $37,000 in Restitution

In cases where a person is convicted of a criminal offense and sentenced to a term of probation, he or she may be eligible for expungement provided several conditions are met. First, the defendant must successfully complete the term of probation (or obtain an early release). Second, the defendant must have paid all fines and restitution ordered as part of his or her sentence. Finally, the defendant cannot be charged with or on probation for another crime.

This second condition is especially important. A California judge will not grant expungement if the defendant owes any outstanding amounts arising from the original conviction. Here is an example from a recent case in El Dorado, California. The defendant in this case previously entered a no-contest plea to a single charge of “child endangerment.” The judge issued a suspended sentence and placed the defendant on probation for a term of four years.

At sentencing, the judge imposed a number of conditions on the defendant’s probation. In addition to some nominal fines, the judge ordered the defendant to pay “restitution” to his victim. The exact amount of this restitution was not set during the sentencing hearing. Instead, the judge referred the matter to the probation department. But the judge told the defendant, “All other terms as stated here this afternoon will be incorporated into your formal — your order of formal probation.”

Several months later, the defendant was ordered to pay approximately $37,000 in restitution. Most of this amount was never paid due to the defendant’s financial hardship. After a series of court hearings on the matter, the defendant’s probation eventually expired. The defendant then petitioned for an expungement of his record. The trial court declined citing his failure to pay the entire amount of the restitution.

A California Court of Appeals panel agreed with the trial judge’s decision. The court rejected the defendant’s argument that the restitution “was not a condition of probation.” Indeed, after sentencing the defendant signed a probation order acknowledging he was responsible for “the terms and conditions” established by the court, which included paying any required restitution. Accordingly, the Court of Appeals said the defendant was not entitled to expungement until such time as he paid the full amount of the restitution ordered.

Need Help From a San Jose Expungement Lawyer?

Expungement can help give a person a second chance after a criminal conviction. But it is not a given that a judge will dismiss a conviction from a defendant’s record. That is why you need an experienced San Jose expungement attorney who understands the law in this area. Contact Wesley J. Schroeder, Attorney at Law, today if you need help from a qualified criminal defense attorney.