Fifth District Court of Appeal expands possibilities for those seeking record clearance
Lisa Cope Duflock, Staff Attorney
Convictions with prison terms are often dismissed as available for record clearance, with the only option being a Certificate of Rehabilitation or a Governor’s pardon, both of which are onerous to obtain and rarely granted. However, California is consistently on the forefront of record clearance, expanding its provisions and making it available to more people who have completed their sentencing. In this vein, in 2017, the California Fifth District Court of Appeal issued its decision in People v. Khamvongsa, holding that a defendant whose prior felony conviction was re-designated as a misdemeanor pursuant to Proposition 47 could obtain relief under Penal Code section 1203.4a despite having served a prison sentence. (8 Cal. App. 5th 1239).
Erica Khamvongsa pleaded no contest to felony and misdemeanor drug charges in 2002 and was sentenced to 32 months in state prison. In 2015, upon Khamvongsa’s petition, the felony conviction was reclassified to a misdemeanor as part of Proposition 47, which was approved by the voters in 2014 and reduced the penalties for certain drug and theft related offenses and reclassified those felonies as misdemeanors. Khamvongsa then petitioned for dismissal of both misdemeanor convictions under Penal Code section 1203.4a and was denied by the trial court on the grounds that she served a state prison sentence.
In her appeal, the Fifth District Court of Appeal examined Penal Code section 1203.4a, Proposition 47, and other record clearance code sections in reaching its conclusion. Because Khamvongsa successfully petitioned for the reclassification of her prior felony conviction to a misdemeanor under Proposition 47, the court must treat that prior conviction as a misdemeanor for all purposes, including when determining whether she qualifies for relief under Penal Code section 1203.4a. Accordingly, Khamvongsa’s request to withdraw her plea of guilty, enter a plea of not guilty, and have the court dismiss the action under section 1203.4a was as a defendant convicted of a misdemeanor, not a convicted felon. Whatever sentence Khamvongsa served for the felony offense was irrelevant.
The Fifth District’s decision in People v. Khamvongsa is a further expansion of record clearance to felonies which were re-aligned under Proposition 47. Although the provisions of this proposition sun-setted on November 4, 2022, the individuals who petitioned for realignment prior to its expiration are not precluded from petitioning for record clearance of any such realigned felony convictions. Making this information available to more folks is crucial to Pro Bono Project’s mission of expanding access to record clearance for our Reentry clients.