California Appellate Court Upholds Expungement of Attempted Sex Offense

Recordgone.com recently defended an appeal of a granted California expungement, and the Court of Appeal has unanimously affirmed the order granting the expungement motion. The case involved whether a conviction for an attempted violation of section 288(a) could be expunged under California Penal Code section 1203.4. The Sixth District Court of Appeal ruled that an attempted violation is not considered “any violation” of the sex offense exceptions in section 1203.4(b), and the appellate court affirmed the trial court’s order granting the expungement.

Attorney Jennifer Strange defends appeal of California expungement case

“Winning appeals is important because it shows our clients that we will continue to fight if the district court judge makes the wrong ruling, and it creates case law that protects the ability for former offenders to have their records expunged,” said attorney Mathew Higbee.

In 2008, the defendant pleaded nolo contendere (no contest) to attempted lewd or lascivious act on a child under 14, a violation of Penal Code section 288(a). The court placed him on three years of formal probation. In 2012, after successfully completing probation, defendant filed a motion seeking to have his case dismissed (expunged) pursuant to section 1203.4. Penal Code section 1203.4 allows a defendant, upon successful completion of probation, to withdraw a plea of guilty or nolo contendere and have the case expunged by the court.

California’s Expungement Statute

A trial court has no discretion to deny a 1203.4 motion if the defendant has satisfied all the terms of probation, unless one of the exceptions specified in section 1203.4(b) applies. Penal code section 1203.4(b) provides that “any violation” of certain sex offenses, including section 288, are not eligible to be expunged. However, section 1203.4(b) does not expressly prohibit the expungement of attempted violations of the sex offenses listed in that section. The District Attorney’s argument in the appeal was that an attempted violation is also covered by the exceptions because of the “any violation” wording used in that subsection.

The Court’s Analysis

The court’s decision analyzed the wording of the statute and the legislature’s intent when enacting the exceptions in California’s expungement statute. The plain language of the statute does not include attempted violations of the enumerated offenses. Additionally under well-established case law, an attempt is a “separate” and “distinct” offense from the completed crime.

The Court then concluded the literal interpretation of the statute is not contrary to the legislative intent, which was to “prohibit persons convicted of specified sex offenses” from expunging his or her record and to conserve resources that would be use to investigate if those convicted of sex offenses were able to file for an expungement. However, the court decided that allowing those convicted of an attempted violation to expunge their record does not thwart that purpose. In reaching this decision, the Court of Appeal agreed with their sister court in the Fourth District, which had previously ruled on this same question in 2006. The Court here also reasoned that if the legislature had the desire to amend the statute, there had been ample opportunities since that 2006 decision.

Supervising attorney Jennifer Strange argued the case. More information on California expungement can be found here.