Expungement of Conviction for Statutory Rape, PC 261.5(c)

In August 2017, our client was arrested for allegedly violating Penal Code § 261.5(b), “unlawful sexual intercourse with a minor who is not more that person’s spouse and is not more than three years younger than the perpetrator.”

Penal Code § 261.5(b) is a “wobbler,” punishable by up to one year in county jail if charged as a misdemeanor, and punishable by up to three years in state prison if charged as a felony. Luckily, for our client, the charge was brought as a misdemeanor, no doubt reflecting the delay in reporting and the fact that the victim was 17 years old (as compared to much younger) and the circumstances of the sexual intercourse.

The case arose more than six years earlier when our client was 20 years old and the victim was 17. The victim had met our client at a party and both parties, intoxicated by alcohol, walked out of the party and got into our client’s car, where one thing led to another.

The victim and our client kept in contact with each other after the evening and even dated for a few years, which eventually ended and the young woman, angry at breaking up with our client, going to the police station to report the first evening together years earlier. The woman understood it was statutory rape and with the intent that our client be punished, in part no doubt for breaking up with her, decided to report the crime. Our client was immediately arrested.

A complaint alleging this was then filed on June 5, 2018. The complaint, however, contained an error as to our client’s date of birth, making him more than three years older than the “victim,” when in fact his birthdate made him less than three years older. The complaint was then alleged to add a count, a violation of Penal Code § 261.5(c), “unlawful sexual intercourse with a minor who is not one’s spouse and who is less than three years younger than the perpetrator.”

In November 2018, our client, then 27 years old, entered into a no contest plea bargain to an amended count two, a charge of violating Penal Code § 261.5(c), also a misdemeanor.

Count one, a charge of violating Penal Code § 261.5(b) was dismissed.

The terms of the plea bargain were that our client was sentenced to three years of summary probation on the following terms and conditions: obey the protective order issued by the court, attend a 52-week sexual compulsiveness program, perform 40 days of community labor and pay $230 in the clerk’s office. Our client did not have to register as a sex offender under Penal Code § 290.

Our client complied with all terms and conditions of probation and probation terminated with the passage of time in November 2021.

In the four years since the conviction, our client, now 31, lived a stable life working within the event services industry and moved to North Carolina.

However, while living there, 3,000 miles away, he could not escape the stigma of his statutory rape conviction from California. He had difficulty renting his own apartment because of the conviction.

He eventually found a place to live, but it was more expensive. This made it difficult to financially support his parents, who were in their seventies.

He also realized that with this conviction, he was perceived as a sexual predator and life would be difficult, particularly on the employment front.

So, in 2022, he called Greg Hill & Associates because our client had heard about expungement. Greg advised that client that his conviction was indeed eligible for expungement.

Greg explained, however, that expungement did not erase or delete the record of the case being filed against him, but it did change the last entry on the case to dismissal and returned the last plea from no contest to not guilty. More importantly, “expungement” allowed our client to legally represent that he had never been convicted of statutory rape, except if applying for a state-issue professional license (such as to become licenses as an attorney or medical doctor), if he was running for political office or he was applying to operate a state lottery (i.e., at a liquor store).

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