Expungements & Certificates of Rehabilitation: California Law Update
I. Expungements
§ What is an expungement?
Expungement refers to the cleansing of a criminal record, including sealing and destroying all arrest and conviction information. Un-expunged records of convictions or even arrests can be of concern to anyone seeking employment. Whether probation was granted for a misdemeanor, a wobbler, or a felony, and whether probation has expired or has been terminated (by bringing a motion to terminate early), the conviction can be expunged.
§ The Fine Print
Penal Code section 1203.4 provides: “In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any new offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.”
§ I have a probation violation; can I still expunge my record?
Many courts will grant an expungement even with probation violations on the record if the Petitioner has satisfied all the other requirements. Some courts, however, view the matter differently and will deny expungement if there have been even minor violations of probation, depending on the facts.
The key requirements are that the petitioner is not serving a sentence of any offense, is not again on probation or not currently charged with anything new.
§ What Happens?
What happens technically is that the earlier plea of guilty or no contest is withdrawn and a plea of not guilty is entered. If there was a trial, the verdict of guilty is set aside. In either case, the court dismisses the charging documents and the Petitioner is thereupon "released from all penalties and disabilities resulting from the offense of which he or she has been convicted," with certain exceptions.
§ Job applications and the question, "Have you ever been convicted of a crime?"
Once an order under section 1203.4 has been granted, the petitioner can lawfully state that he or she have not been convicted of that crime when asked on a job application from a private employer. However, when applying for public office, seeking any license from the state, such as for a lawyer, real estate broker, stock broker, physician, architect, or contractor, convictions must be disclosed (but can be disclosed as expunged convictions).
§ An expungement does not help with some prior convictions
Some crimes are deemed "prior-able"-- meaning that if you are arrested for a similar crime in the future, punishment may be enhanced; accordingly, if you are arrested with a prior, and the prior had been expunged, that expungement will not help since the charge was “prior-able.” For instance, with prior DUI convictions, expungement has no impact: all DUIs are always chargeable and a DUI or wet reckless is always a prior. An expungement will restore gun ownership privileges in most but not all cases. There are offenses where probation may be granted (with expungement then possible) even though lifetime registration as a sex offender continues.
§ Exactly how do I get an expungement?
- If you were convicted of a misdemeanor and are still on probation, you can file a PC 1203.3 petition to have probation terminated early and then file a PC 1203.4 petition for expungement.
- If you were convicted of a misdemeanor and have completed probation or not given probation, you can file to have the conviction dismissed and then file a PC 1203.4a petition for expungement.
- If you were convicted of a felony and are on probation, you can file a PC 1203.3 petition to have probation terminated early, then file a PC 17(b) petition to get felony reduced, and then file a PC 1203.4 petition for expungement.
- If you were convicted of a felony and have finished probation, you can file a PC 17(b) petition to get the felony reduced and then file a PC 1203.4 petition for expungement.
- If you were convicted of a felony and were never given probation but were sentenced to county jail., you can file a PC 17(b) petition to get the felony reduced to a misdemeanor and then file a PC 1203.4a petition for expungement.
- If you were sentenced to state prison, you may want to apply for a Certificate of Rehabilitation.
II. Certificates of Rehabilitation
§ What is a Certificates of Rehabilitation?
A Certificate of Rehabilitation is a court order that declares a person convicted of a felony has been rehabilitated. If a petition for a Certificate of Rehabilitation is granted, it is forwarded to the Governor by the court and is considered an application for a pardon. Dismissal of former charges is not required before seeking a Certificate of Rehabilitation if a prison sentence was served. If probation was given instead, dismissal must first be obtained.
Exception: Someone who has been convicted in California of a felony or of a misdemeanor sex offense may apply to a court in his county of residence for a Certificate of Rehabilitation, except those convicted of Penal Code sections: 286(c), 288, 288a(c), 288.5, and 289(j). A Certificate of Rehabilitation can relieve offenders from the sexual offender registration requirement. California Penal Code section 290.5 sets forth a list of persons not eligible for relief from registration.
§ Who may apply for a certificate?
Anyone discharged from custody from state prison on parole and who has lived in CA for five years following release may apply for a Certificate of Rehabilitation. If convicted of a sex offense specified in Penal Code section 290, the accusatory pleading must have been dismissed. Persons not eligible to apply are those who have been convicted of a misdemeanor (except misdemeanor sex offenses) as well as anyone convicted of Penal Code sections 286(c), 288, 288a(c), 288.5, or 289(j), or currently in the military.
§ When can one apply?
Once the period of rehabilitation has passed (which time period begins upon discharge from prison or jail). This period requires five years residence in California, plus another four years for violation of Penal Code sections 187, 209, 219, 4500, or 12310, or Military and Veterans Code section 1672(a), or of committing any other offense which carries a life sentence; plus another five years in the case of any person convicted of any offense or attempted offense for which sex offender registration is required pursuant to P.C. 290. Also, for violations of subdivision (b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or 314, two years is added.
§ What is does this have to do with a pardon?
A pardon restores all rights and privileges, except licenses taken as the result of the conviction. A pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony or certain misdemeanor sex offenses. Receipt of a Certificate of Rehabilitation will be considered in evaluating a pardon application, but it is not the sole determinant, and a ten-year good behavior rule may be waived only in exceptional circumstances. Once the threshold criteria have been met, the application will be reviewed to determine whether the applicant has met the standards, which are: "... the person shall live an honest and upright life, shall conduct him or she with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land."
§ Rescission of Certificate of Rehabilitation
The DA in either the county of conviction or the county of residence has the right to petition the court to rescind a certificate if it was granted for any offense specified in California Penal Code section 290.
§ How to appy
The petition must be filed in the county of the petition's residence and sent to the local DA 30 days before the scheduled hearing. Each person who is eligible to initiate the Certificate of Rehabilitation proceedings is entitled to receive assistance in processing the petition from all rehabilitative agencies, including adult probation officers of the county. Private lawyers specializing in this area are recommended if affordable. Once a petition is filed, the court will ask the DA's office to investigate and report back. At the hearing, the court may require testimony and information about the conviction and conduct since serving time. If the court concluded there has been a demonstration of rehabilitation, a certified copy of a Certificate of Rehabilitation will be forwarded to the Governor and become an application for a pardon. The Governor's office may ask for more investigation. Following a review, the Governor may or may not grant the pardon.
§ Direct pardon application
Direct pardons are used by those who are not eligible for a Certificate of Rehabilitation, such as misdemeanants or nonresidents. Any person who has been convicted in California of a felony, or a misdemeanor sex offense specified in Penal Code sec. 290 (the accusatory pleading of which has been dismissed pursuant to Penal Code sec. 1203.4) may directly apply to the Governor for a pardon.
Applications for pardons may be made in two ways: either an application for a Certificate of Rehabilitation or through a direct traditional pardon application. The procedure utilized will depend on the circumstances; it may be appropriate to consult with a lawyer to determine what is appropriate. The Governor will likely will refer the application for investigation. After investigation, the applicant is notified of when the Board will be considering his case and he or will be given the opportunity to forward any additional information at that time. Applicants do not attend the pardon consideration meeting itself. Following the meeting, the application, investigation report, and the Board's recommendation are all sent to the Governor. The Governor reviews all of the information and decides whether to grant a pardon.
§ Effect of granting of certificate or pardon
When a Certificate of Rehabilitation or pardon is granted, it is automatically filed with the Secretary of State and becomes a matter of public record.
§ Restoration of rights
The most frequent reason to ask for these rights back is for personal satisfaction, or for licensing or bonding purposes, or to restore firearms privileges. Another reason is to help with employment opportunities. A pardon does not seal or expunge the record of the conviction. That requires at least one more court filing and hearing. Ex-felons become eligible to vote after being terminated from probation or discharged from parole. A pardon is not necessary to be eligible to vote, but a person who receives a pardon may serve on a jury. A pardon means one can be considered for a peace officer position or as a county probation officer or as a state parole agent, but not for other peace officer positions. Finally, a California pardon does not apply to convictions in another jurisdiction. A person convicted in another state or in a federal court must apply for a pardon in the other state or to the federal court, as appropriate.
Douglas Slain, JD, MA
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