Penal Code 851.8 Factual Innocence Petition

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Under PC 851.8 your arrest can be deemed "never to have occurred". Section 851.8 not only seals arrest records and court records, but it also seals Department of Justice records, and requires the eventual destruction of the records.  The burden is on the you, the petitioner, to show with a preponderance of evidence that the alleged criminal conduct did not occur.  The burden is very high and these petitions can be difficult to win.  If granted, you can then answer "no" to the "have you been arrested before" question you encounter on job applications, rental applications and state licenses.  There is a 2 year time limit on filing the petition (unless there is "good cause").  

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Petitions for Factual innocence cannot be granted until the statute of limitations has run on the alleged crime (1 year for Misdemeanors, 3 years for most Felonies).  In the case of a Felony, the petition must be filed within 2 years and then heard after 3 years.  

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You are eligible to seal your arrest record by factual innocence if:

• You were arrested and no charges were filed

• You were arrested and charged, but the case did not result in a conviction

• You were acquitted by a jury

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There are several steps, including asking the arresting agency (Police) to deem you factually innocent and they waiting 60 days for them to respond before filing with the court and serving the arresting agency, district attorney etc. 

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Factual innocence is difficult to prove and just because you were acquitted or not charged with a crime in the first place does not mean you are entitled to factual innocence.  

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Penal Code 851.91 Petition (The NEW LAW):  Consumer Arrest Record Equity (C.A.R.E. Act) Per SB 393; Limited Sealing to prevent disclosure to anyone outside the criminal justice agency.

 

California Senate Bill 393 was signed into law on October 11, 2017 and took effect January 1, 2018.  It adds a LIMITED way seal your arrest record with no time limit, by adding California Penal Code 851.87 - 851.92.

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If your arrest occurred 10, 20, even 100 years ago, we can still petition the court for this remedy.

 

Under the new law, PC 851.91, we set a hearing, file a petition, and serve the district attorney and arresting agency (the police station that arrested you).  The burden is then shifted to the District Attorney to show that you should not have your record sealed. 

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You are eligible for relief if:

• You were arrested, no charges were filed, and the statute of limitations has run

• You were arrested, and charged, but the case did not result in a conviction

• You were acquitted by a jury

• Your conviction was reversed on appeal

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There are of course exceptions to the rule.  If you may still be charged and the statute of limitations has not run on the alleged crime you were arrest for, you will need to wait.  Intentionally evading law enforcement, or avoiding efforts to prosecute by identity fraud.  Also, if your criminal record shows a pattern of domestic violence, child abuse or elder abuse.  In those case you can still petition to have your record sealed "in the interest of justice."  

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The statute says that when relief is granted “the arrest is deemed not to have occurred, the petitioner may answer any question relating to the sealed arrest accordingly, and the petitioner is released from all penalties and disabilities resulting from the arrest,” with a few exceptions. The most significant limitation is that the sealing relief provided under section 851.91 specifically excludes records maintained by the Department of Justice; however, the court is required to forward the disposition to the Department of Justice so it can update its records to reflect the relief granted. 

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Under the C.A.R.E Act limited sealing, you must still disclose your arrest if you run for public office, apply to be a peace officer, seek a license from a state agency or contract with the state lottery commission.  Also, your "sealed" arrest record can be viewed by prospective employers when applying for a job with a public utility or cable company, or government office.  The good news is that the C.A.R.E Act prevents your sealed record from being disclosed to unauthorized third parties (background check agency).

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​Keep in mind that California's "ban the box" law (AB 1008) prevents potential employers from asking you about arrests that did not result in a conviction.  However, employers often get around this by giving different reasons for not hiring someone with an arrest record.  '

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Among other relief, PC 851.92(b)(2)(A) states that the local summary criminal history information shall include, directly next to or below the entry or entries regarding the sealed arrest, a note stating “arrest sealed” and providing the date that the court issued the order, and the section pursuant to which the arrest was sealed. This note shall be included in all master copies of the arrest record, digital or otherwise. And; (B) The state summary criminal history information shall include, directly next to or below the entry or entries regarding the sealed arrest, a note stating “arrest relief granted,” providing the date that the court issued the order and the section of the Penal Code pursuant to which the relief was granted. This note shall be included in all master copies of the arrest record, digital or otherwise.

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AUTOMATIC SEALING UPDATE:  Automatic Record Sealing under Assembly Bill 1076 starting on July 1, 2022.  PC 851.93 states that starting in July 2022, the DOJ will review its records and automatically seal records of eligible arrestees after their statute of limitations run. The arrest record will say "arrest relief granted" and will not be released except for the usual exceptions set forth in PC 851.92.   If your record is not automatically sealed, you are still entitled to petition for relief under 851.91.  In practice, few records have actually been automatically sealed and the courts are still hearing petitions to seal records under PC 851.91-92.  Some records require "good cause" to seal rather than being sealable as a matter of law.  Instead of waiting for the DOJ to seal  your record at some indeterminate time in the distant future, our office can file a petition demanding a court hearing where the court will be asked to seal your record as a matter of law or for good cause. Click here for more information.

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What is a State Summary Criminal History Information?

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California Penal Code Sections 11105 (a) and (b) provide:  "(a) (1) The Department of Justice shall maintain state summary criminal history information.  (2) As used in this section:  (A) "State summary criminal history information" means the master record of information compiled by the Attorney General pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, fingerprints, photographs, date of arrests, arresting agencies and booking numbers, charges, dispositions, and similar data about the person.  (B) "State summary criminal history information" does not refer to records and data compiled by criminal justice agencies other than the Attorney General, nor does it refer to records of complaints to or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice."

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Penal Code 1203.4 Expungement for felonies, misdemeanors and infractions.

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If you were convicted (either by a jury or because you plead no contest or guilty to a crime) you may be eligible to have your record expunged.  Expungements in some jurisdictions may require a showing of good cause and compelling reasons for reduction.  I work with clients to tell their story in a way that lets the judge use their discretion to grant the relief. 

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Do Expungements Really Help with Employment?

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YES!  Fair Employment and Housing Act 12952 (3) (C) prohibits employers from considering Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

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AB 1008 Ban the Box:

Fair Employment and Housing Act 12952: (“(a) Except as provided in subdivision (d), it is an unlawful employment practice for an employer with five or more employees to do any of the following: (1) To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history. (2) To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.”)

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Exceptions:  (d) This section does not apply in any of the following circumstances: (1) To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check. (2) To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code. (3) To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code. (4) To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).”)

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NEW LAW Effective July 1, 2020:  Business and Professions Code 480

California licensing boards cannot deny you a license based on a conviction if it has been expunged.  Per the code: A person shall not be denied a license on the basis of any conviction, or on the basis of the acts underlying the conviction, that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.425 of the Penal Code, or a comparable dismissal or expungement. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code shall provide proof of the dismissal if it is not reflected on the report furnished by the Department of Justice.  In addition, a board shall not deny a license on the basis of an arrest that resulted in a disposition other than a conviction, including an arrest that resulted in an infraction, citation, or a juvenile adjudication.  (Exceptions: The State Athletic Commission, The Bureau for Private Postsecondary Education, The California Horse Racing Board).

 

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NOW AVAILABLE!  PC 1203.41 Expungements for Prison Felonies

NEW LAW SB 731 takes effect on July 1, 2023: Section 1203.41 of the Penal Code is amended to read: 1203.41. (a) If a defendant is convicted of a felony, the court, in its discretion and in the interests of justice, may order the following relief, subject to the conditions of subdivision (b): (1) The court may permit the defendant to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty, or, if the defendant 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 dismiss the accusations or information against the defendant and the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted, except as provided in Section 13555 of the Vehicle Code.  (2) The relief available under this section may be granted only after the lapse of one year following the defendant’s completion of the sentence, if the sentence was imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, or after the lapse of two years following the defendant’s completion of the sentence, if the sentence was imposed pursuant to subparagraph (A) of paragraph (5) of subdivision (h) of Section 1170 or if the defendant was sentenced to the state prison.

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In order words, if you were convicted of a Felony and served state prison, you can wait 2 years after completion of sentence and then apply for an expungement.  There are exceptions for defendants with PC 290 (Sex Offender) registration and under supervised release.  

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Firearms:  Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in their custody or control any firearm or prevent their conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.  Click here for more information.

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Penal Code 17(b) Petition to reduce felony to misdemeanor

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When you were convicted of a felony which is a "wobbler" and were given probation or time in county jail and not sent to state prison, you may be eligible for reduction to a misdemeanor.  A "wobbler" is an offence that can be sentenced either as a felony or misdemeanor.  Once your felony has been reduced to misdemeanor under PC 17(b) your conviction will be treated as a misdemeanor for all extensive purposes, which means often your California guns rights will be restored, along with all of your other civil liberties.  Sometimes the definitions of offenses have changed over time which means it take a skilled attorney to make the argument that your offense should now be treated as a wobbler and reduced.  In addition, Judges have wide discretion with 17(b) petitions and petitions must be compelling in order to be granted.  I work with clients, going through their personal history and collecting documentary evidence, to present a compelling case for why they should have their sentence reduced.  

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Certificate of Rehabilitation - *NEW LAW*

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A Certificate of Rehabilitation has long been toothless.  Aside from entering you in a lottery to get a Governor's Pardon, it didn't do much.  Now thanks to The Pardon and Commutation Reform Act of 2018 or AB 2845 which was approved on Sept 27, 2018 and amends Government Code §12952, it finally has some teeth!  

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Under the new law:

• An employer with 5 or more employees is prohibited from considering or asking about convictions where the person has received a pardon or certificate of rehabilitation (certain exceptions apply: jobs where background check is require by law, jobs with a criminal justice agency, as defined in Section 13101 of the Penal Code, jobs as a Farm Labor Contractor, as described in Section 1685 of the Labor Code, and jobs were self-regulatory agencies, such as in finance, restrict employment by criminal history.  

• Restores your civil rights except for 2nd Amendment rights

• You may not be denied public licensing or employment based on your conviction

• It is official proof that you have been rehabilitated to the satisfaction of the criminal justice system

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As usual, it automatically acts as an application for a Governor’s Pardon.  

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Motion to Vacate Conviction Per PENAL CODE § 1473.7 (Vacate a Conviction if you didn't understand immigration consequences):

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Effective January 1, 2017, California Penal Code § 1473.7 provides that “a person no longer imprisoned or restrained may prosecute a motion to vacate a conviction” when “the conviction . . . is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.” P.C. § 1473.7(a)(1).  We can help you vacate your conviction to clear your criminal record if there are unintended immigration consequences, even if there was a court advisement about immigration when you entered a plea.  Contact us to find out more.  

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Not sure what is on your criminal record?

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1) The DOJ keeps your criminal history records.  You can request a copy by going to the following link and following the instruction to submit Live Scan fingerprints:  https://oag.ca.gov/fingerprints/record-review

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2)  Get your CAD file and audio recording of your 911 call.  In San Francisco, the link is:
https://sfdem.org/sites/default/files/Records%20Request%202018.pdf
Include $35 to get the audio CD

3)  Get your police report.  In San Francisco, the link is:
https://www.sanfranciscopolice.org/get-service/police-reports/request-police-report

4)  Petition the police to seal the record.  You have to do this 60 days before your lawyer petitions the court.  You can mail it in or drop it off with the police station that arrested you.  They will ignore it, but make a copy and write the of when you sent it in as proof that you completed this step.  
https://oag.ca.gov/sites/all/files/agweb/pdfs/idtheft/forms/bcia-8270.pdf

5)  Get your local RAP Sheet.   In San Francisco you can get it from 850 Bryant St., Dept 475.
San Francisco Police Department, Identification Bureau, Room 475 (4th floor), Hall of Justice, to request your local RAP sheet information.  More info:
https://sfsuperiorcourt.org/divisions/criminal/obtain-criminal-records

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HOW TO CORRECT YOUR DOJ RECORD:

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The DOJ keeps your criminal history records.  Sometimes they get backed up and fail to update your record even after you have received a court order.  It can take 3-6 months for them to input your court order to show an expungement or record sealing.  If they have not updated your record or there is an error on your record, you can request a correction using a Claim of Alleged Inaccuracy of Incompleteness form.  Before you can correct your record you must  request a copy by going to the following link and following the instruction to submit Live Scan fingerprints:  https://oag.ca.gov/fingerprints/record-review

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Make sure to bring the following form to your LiveScan appointment:

https://oag.ca.gov/sites/all/files/agweb/pdfs/fingerprints/forms/bcia_8016RR.pdf?

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