What Is the Legal Definition of ''Expunged'' ?
While a number of courts have used forms of the word "expunge" to describe the relief made available by section 1203.4 (e.g., People v. Acuna (2000) 77 Cal. App. 4th 1056, 1058 92 Cal. Rptr. 2d 224), the statute does not in fact produce such a dramatic result.
To "expunge" means "to strike out, obliterate . . . efface completely: Destroy" (Webster's 9th New Collegiate Dict. (1984) p. 439) or "blot out, erase. . . wipe out, . . ., annihilate, annul . . . put an end to" (5 Oxford English Dict. (2d ed. 1989) p. 588).
As used in the criminal law, "expungement" means the "eradication of a record of conviction or adjudication upon the fulfillment of prescribed conditions . . . . It is not simply the lifting of disabilities attendant upon conviction and a restoration of civil rights . . . . It is rather a redefinition of status, a process of erasing the legal event of conviction or adjudication and thereby restoring to the regenerative offender his status quo ante." (United States v. Fryer (N.D.Ohio 1975) 402 F. Supp. 831, 834, quoting Grough, Expungement of Adjudication Records, 1966 Wash. U. L. Q. 147, 149.)" (People v. Field (1995) 31 Cal. App. 4th 1778, 1786 37 Cal. Rptr. 2d 803.)
Section 1203.4 does not, properly speaking, "expunge" the prior conviction.
The statute does not purport to render the conviction a legal nullity. Instead it provides that, except as elsewhere stated, the defendant is "released from all penalties and disabilities resulting from the offense."
The limitations on this relief are numerous and substantial, including other statutes declaring that an order under section 1203.4 is ineffectual to avoid specified consequences of a prior conviction. (E.g., Veh. Code, 13555 relief under 1203.4 "does not affect any revocation or suspension of the privilege of the person convicted to drive a motor vehicle under this chapter"; Bus. & Prof. Code, 490 licensing boards can suspend or revoke professional license based on qualifying conviction "irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code", 6102, subd. (c) summary disbarment of attorney for qualifying conviction "irrespective of any subsequent order under Section 1203.4 of the Penal Code or similar statutory provision" 2236.1, subd. (d) same, suspension of medical license; Ed. Code, 44008, 44009 ineffectuality of relief under 1203.4 to affect certain provisions concerning employment in elementary or secondary schools; cf. Lab. Code, 26 no license under Labor Code shall be denied solely due to conviction which has been dismissed under 1203.4; see generally Adams v. County of Sacramento (1991) 235 Cal. App. 3d 872, 880 1 Cal. Rptr. 2d 138.)
Furthermore, by the statute's own terms, an order under section 1203.4 "does not relieve" the ex-offender of "the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office or for licensure by any state or local agency . . . ." ( 1203.4, subd. (a).)
Indeed, section 1203.4 contains a sweeping limitation on the relief it offers, stating that "in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed."
This provision alone precludes any notion that the term "expungement" accurately describes the relief allowed by the statute.
Indeed, this provision might be reasonably understood to directly rebut defendant's argument here, on the ground that the current charges against him under section 12021 constitute a "subsequent prosecution . . . for any other offense" in which his prior conviction "may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed."
However, although this same provision has appeared in section 1203.4 since 1927 (Stats. 1927, ch. 770, 1, pp. 1493-1496), and many other limitations on section 1203.4 have long been set forth in statute and case law, a court in 1960 managed to read section 1203.4 as expunging the prior conviction and thereby restoring the right to possess firearms. In People v. Taylor (1960) 178 Cal. App. 2d 472, 479 3 Cal. Rptr. 186 (Taylor), the defendant was charged with possessing a handgun in violation of section 12021. She contended that she could not violate that section because her prior felony conviction had been dismissed under section 1203.4.
The court agreed, declaring that section 1203.4 effects "the complete rehabilitation of those convicted of crime.
The record of one released under this section is wiped clean, subject only to reinstatement when, and only when, the person commits another and subsequent crime, or for purposes of those exceptional situations discussed supra." (Taylor, supra, 178 Cal. App. 2d at pp. 478-479.)
The court found it a "fair inference" that one granted relief under that statute "should . . . be released from that class of convicted felons to which section 12021 is applicable and should be restored to the right to possess a revolver or other handgun about her premises or her place of business as provided by Penal Code, section 12026, just as any other citizen." (Id. at p. 479.)
The weaknesses in Taylor's reasoning were such that nearly 30 years later, the Supreme Court repudiated it. (People v. Bell (1989) 49 Cal. 3d 502, 546 262 Cal. Rptr. 1, 778 P.2d 129.)
However, the court declined to "formally disapprove" Taylor because the Legislature had already abrogated it, in 1961, by amending section 1203.4 to provide that relief under its terms did not authorize convicted felons to possess concealable weapons and did not prevent their prosecution under section 12021. (People v. Bell, supra, 49 Cal. 3d at p. 546, citing Stats. 1961, ch. 1735, 1, p. 3744; see Ready v. Grady (1966) 243 Cal. App. 2d 113, 116 52 Cal. Rptr. 303 Legislature "immediately nullified" Taylor decision.)
It is this 1961 amendment, substantively unchanged since its enactment, on which defendant's argument is built. It consists of the following paragraph:
"Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess or have in his custody or control any firearm capable of being concealed upon the person or prevent his conviction under Section 12021." (Stats. 1961, ch. 1735, 1, p. 3744.)