There are 4 basic ways to clean up a criminal record California. The option for you depends on whether you were arrested or convicted, the crime you were convicted of, and the ultimate goal of trying to clean up your record.
If you don’t know if you have a record or what is on your record, you should request a copy of your California Department of Justice Record.
Expungement/Motion to Set Aside Conviction
Expungements or Motions to Set Aside a Conviction are permitted under California Penal Code section 1203.4. Under Penal Code 1203.4, if you have been convicted of a misdemeanor or felony AND were not sentenced to prison, you may be eligible for an expungement. In order to be eligible for an expungement, you must have fulfilled the terms of your probation and not have any new or pending cases. If you are still on probation, you are not eligible for an expungement; however, a motion to terminate probation early can be filed concurrently with the expungement.
If the Court grants the expungement you are released from “all penalties and disabilities resulting from the offense, which you have been convicted, except as provided in section 13555.” However, the order does not relieve you of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
What Does an Expungement Do?
- Your plea of guilty (or no contest) is withdrawn and a plea of NOT GUILTY is entered;
- The Court then DISMISSES your case and transmits this information to the Department of Justice;
- Your case and Department of Justice Records will now show your case as “DISMISSED”;
- You can answer “No” if an employer asks you if you’ve ever been convicted of a crime;
- An expungement can help you with some job licenses and certificates;
- An expungement can improve your credit rating;
- An expungement can help you with housing and loan applications; and
- An expungement can restore student loan eligibility after a drug conviction.
What an Expungement Does Not Do:
- An expungement does not destroy the record of your arrest;
- An expungement does not give back any gun rights taken away by a felony conviction (See Certificate of Rehabilitation);
- An expungement does not affect any revocation or suspension of the privilege of the person convicted to drive a motor vehicle under this chapter;
- An expunged crime may still count as a prior conviction if you are charged with another crime in the future;
- An expunged crime may still count as a strike if you are charged with a subsequent strike crime; and
- If you have to register as a sex offender, you will still have to register even after the conviction is expunged (See Certificate of Rehabilitation).
Petition to Seal & Destroy an Arrest Record
In some cases, you may be able to petition the Court to seal and destroy your arrest record. Under California Penal Code section 851.8, you may Petition the Court for a finding of “Factual Innocence.” In other words, you must prove that you were factually innocent of the crime for which you were arrested. If the Court grants your Petition to Seal and Destroy your Arrest Record, an order will be sent to the arresting agency and to the Department of Justice to “seal and destroy” the arrest record.
When can the Court Seal and Destroy an Arrest Record?
- If you were arrested, but charges were never filed;
- If you were arrested and charged by the District Attorney or City Attorney, but no conviction occurred; and
- If you were acquitted of a charge and it appears to the judge presiding at the trial at which the acquittal occurred that you were factually innocent of the charge.
Certificate of Rehabilitation
A Certificate of Rehabilitation is another method of cleaning up an arrest record. In essence, a Certificate of Rehabilitation is a Court order that deems you a law-abiding citizen; however, it does not erase your criminal record. It may relieve you from certain obligations and/or penalties.
What a Certificate of Rehabilitation Does
- prevents state licensing agencies from automatically denying you a license;
- prevents prior felony convictions from being used to impeach your credibility as a witness (as long as you additionally receive a California Governor’s Pardon);
- relieves certain sex offenders of their duty to register as a sex offender pursuant to Penal Code 290; and
- acts as an automatic application for a Governor’s Pardon.
What a Certificate of Rehabilitation Does Not Do
- It does not erase the conviction; and
- It does not relieve a felon from the obligation to register as an ex-felon under certain local ex-felon ordinances.
Am I Eligible for a Certificate of Rehabilitation?
Under California Penal Code 4852.01, the following persons are eligible for a Certificate of Rehabilitation:
- Any person convicted of a felony and sentenced to California State Prison and has resided in the state for the last 5 years or who was released on Parole and has resided in the State for at least 3 years; or
- Any Person convicted of a felony or misdemeanor sex offense in Penal Code section 290 in which the accusatory pleading has been dismissed pursuant to Penal Code Section 1203.4 and has resided in the state for 5 years. (If you wish to apply for a Certificate of Rehabilitation and you have been convicted of a misdemeanor sex offense, you must first seek a dismissal under Penal Code Section 1203.4).
How Long do I have to Wait Before I Can Apply for a Certificate of Rehabilitation?
For Certificate of Rehabilitation applications, a “satisfactory period of rehabilitation” is the time you were free from criminal activity. This period includes the five years that you were a California resident immediately prior to filing for your Certificate plus an additional.
- Four (4) Years if you were convicted of:
- Penal Code 187- Murder;
- Penal Code 209 – Aggravated Kidnapping;
- Penal Code 219 – Train Derailing
- Penal Code 45200 – Assault with Means of Force Likely to Cause Great Bodily Injury (GBI);
- Penal Code 12310 – Acts Involving Explosives Causing Death, Mayhem, or Great Bodily Injury;
- Military & Veterans Code 1672(a) – Acts of Failing to Act that causes Death;
- Any other offense that carries a life sentence.
- Five (5) Years if you were convicted of any California sex offense that requires registration as a sex offender pursuant to Penal Code 290 PC, except for:
- certain violations of Penal Code 311 – Child Pornography;
- California’s “sexual exploitation of a child” laws; or
- Penal Code 314 PC obscene conduct/indecent exposure.*These violations only require an additional two-year period,12 or
- Two (2) Years if you were convicted of any offense not listed above.
If the judge grants your Certificate of Rehabilitation, it automatically acts as an Application for a Governor’s Pardon.
A Governor’s Pardon is the ultimate relief from the penalties and obligations associated with a criminal conviction. Although the Certificate of Rehabilitation is the court’s recommendation for a pardon, it is the Governor of California who has the ultimate say in whether or not to grant this relief. The governor may choose to do so without further review, or the governor may choose to investigate the case further.
The exception to this rule is that if you have been twice convicted of any felony. In that case, you must have the recommendation of a majority of the California Supreme Court before the Governor can pardon you without further review.
And where a Certificate of Rehabilitation doesn’t offer relief to:
- Persons who have been sentenced to death; or
- Persons who have been convicted of certain California sex offenses,
a Governor’s Pardon does.
Mortlock Law Group
If you need help cleaning up your California Criminal Record, please contact the North County San Diego Attorneys of the Mortlock Law Group for a free consultation.