Hi, I was sentenced to four years state prison with a mayhem charge with one strike. I was recently released with time served after serving three years in county jail. I don’t have a criminal background aside from this. Can I eventually have my record expunged so I can move on with my life? — Patrick
You don’t mention the specific Penal Code you were convicted under. Mayhem is defined by California Penal Code (PC) section 203: “Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.” The penalty is set out in PC 204: two, four, or eight years in state prison. All crimes punishable by state prison are felonies. The fact that you actually served your time in the county jail (probably due to the state’s overcrowding problems) doesn’t change the crime to a misdemeanor.
Expungement is not available for felonies. In some cases, a felon can petition to have the felony reduced to a misdemeanor, and then petition to expunge it. This remedy is only available for “wobblers,” crimes that can be charged as either a felony or misdemeanor. Mayhem is not a wobbler.
So, based on what you wrote, you would not be eligible for an expungement. However, eventually you may be able to petition for a Certificate of Rehabilitation and Governor’s Pardon.
Certificates of Rehabilitation are available to former convicts after a period of living in California with no further convictions. PC 4852.01. The certificate does not expunge or seal your record, prevent the offense from being considered as a prior conviction, allow a felon to answer on employment applications that he/she has no record of conviction, or restore the right to own or possess firearms. But it does give some benefits, such as making it easier to qualify for a state-issued license and demonstrating rehabilitation, which could enhance employment possibilities.
The waiting period is five years plus two, four, or five additional years depending on the crime. It appears that mayhem has a two-year addition for a total of seven years. PC 4852.03. The petitioner must be a resident of California for the entire period and “live an honest and upright life, must conduct himself or herself with sobriety and industry, must exhibit a good moral character, and must conform to and obey the laws of the land.” PC 4852.05.
The petitioner can get help from their probation officer or parole officer. Petitioners also can hire an attorney if they choose.
The petition is filed in the superior court of the county where the applicant lives. Forms to file the petition are available from the court clerk. The judge may request that the district attorney do an investigation of the applicant’s history. There will be a hearing on the petition, at which testimony and other evidence may be used.
If the court decides to grant the petition, the Certificate of Rehabilitation serves as an automatic application for a pardon from the Governor. PC 4852.17. A pardon does not seal or erase the record of conviction, prevent the pardoned offense from being considered as a prior conviction, allow a pardoned person to answer on employment applications that he/she has no record of conviction, or restore ability to own a firearm to felons convicted of any offense involving the use of a dangerous weapon, pardon convictions from another state, or federal convictions, or necessarily prevent deportation. However, it does allow a felon to serve on a jury trial, allow restoration of firearms rights in some cases, allow a felon to be considered for appointment as a county probation officer or a state parole agent (but no other peace officer position), and relieves some sex offenders of their duty to register.
More information is available from the California Department of Corrections and Rehabilitation at http://www.cdcr.ca.gov/BOPH/pardons.html.
I hope this helps. Thanks for the question, Patrick.
I am getting many requests to assist people with calculating time served or estimating any release times. Unfortunately, we cannot calculate time served or estimate any release times for those incarcerated. Figuring out exactly how much credit a prisoner will receive is tricky. It depends on many factors including date of commission of crime, date of conviction and incarceration, nature of the crime, whether or not Three Strikes applies, and more. Contact an attorney or the public defender if you need assistance.
Do you have a question for the County Law Librarian? Just email email@example.com. If your question is selected your answer will appear in next Thursday’s column. Even if your question isn’t selected, though, I will still respond within two weeks.