Restoration of Rights, Pardon, Expungement & Sealing
Last updated: October 19, 2017
I. Restoration of Civil/Firearms Rights
A. Civil Rights
The right to vote is suspended while a person is “imprisoned or on parole for the conviction of a felony.” Cal. Const. art. II, § 4; Cal. Elec. Code § 2101.1 A person whose prison sentence is suspended does not lose the right to vote unless and until actually incarcerated in state or federal prison. A person regains voting rights automatically upon completion of any period of parole. Those serving a term of felony probation, “mandatory supervision,” or “post-relief community supervision” may also vote.2 Presumably, federal offenders on supervised release would be regarded as similarly situated.3
Persons convicted of a felony or malfeasance in office may not serve on a jury. Cal. Civ. Proc. § 203(a)(5). The California Constitution disqualifies from office anyone convicted of vote-buying, and authorizes laws disqualifying from public office anyone convicted of bribery, perjury, forgery, malfeasance in office, and other “high crimes.” Cal. Const. art VII, § 8; See Cal. Gov’t § 1021; Cal. Penal §§ 67, 68, 74, 88, 98. If lost, these civil rights may be regained only by a governor’s pardon.
A person convicted of a felony in any jurisdiction, or of a misdemeanor offense involving the violent use of a firearm, cannot own, purchase, receive, possess or exercise custody or control over any firearm. See Cal. Penal §§ 29800, 29805. Federal offenders lose rights under state law only if their offense would be a felony under California law or if they spent at least 30 days in prison. § 29800(c). The right to possess a firearm is restored by pardon based on a certificate of rehabilitation except when the underlying offense involved the use of a dangerous weapon. § 4852.17.4 See People v. Frawley, 98 Cal. Rptr.2d 555, 563-64 (Cal. App. 2000); People v. Ratcliff, 273 Cal. Rptr. 253, 259 (Cal. App. 1990). When granting a pardon, the governor may also provide for a restoration of firearm rights, except where the person was convicted of a felony involving a dangerous weapon. Cal. Penal § 4854. Federal offenders may regain right to possess firearms only through full and unconditional presidential pardon, and those convicted of out-of-state convictions may regain rights by pardon expressly restoring firearms rights. See 66 Op. Cal. Att’y Gen. 343 (1983). Set-aside of conviction does not restore gun rights under state law. See Frawley, 98 Cal. Rptr.2d at 791 (set-aside remedy under Cal. Penal § 1203.4 does not “expunge” a conviction so as to remove state firearms disabilities). It is not entirely clear whether a California set-aside relieves federal firearms liability.5 See also infra Part II B.
Certain misdemeanor offenses, including domestic violence, may result in loss of firearms rights for a period of 10 years. Cal. Penal § 29805. Special relief provisions for law enforcement personnel and those convicted prior to enactment in 1991. §§ 29855, 29860.6
C. Catalogue of California Relief Mechanisms
California offers a variety of routes to restoration of rights, depending on the particular type of conviction or disposition, the individual’s circumstances (including residence), and the reasons for seeking relief. These are listed below, and most are discussed in the pages that follow. Individuals uncertain about which type of relief best suits their needs and circumstances should seek advice of a legal aid lawyer familiar with the range of possible routes to relief.
- “Wobbler” felony reduction – PC § 17(b)
- Misdemeanor reduction – PC § 17(d)
- Early termination of probation – PC § 1203.3
- Dismissal of charges and set-aside – probation imposed* – PC § 1203.4
- Dismissal of charges and set-aside – no probation imposed* – PC § 1203.4a
- Dismissal of charges and set-aside – PC § 1170(h) sentence* – PC § 1203.41
- Sealing misdemeanor adult conviction by minor – PC § 1203.45
- Certificate of Rehabilitation & Pardon – Cal. Penal §§ 4852.01 et seq.
- Direct Pardon (notably for out-of-state residents) – Cal Penal § 4852.16
- Restoration remedy for veterans – PC § 1170.9
- Certificate describing arrest as detention – PC § 851.6
- Record sealing – juvenile misdemeanor arrest – PC § 851.7
- Record sealing & destruction following arrest – factual innocence – PC § 851.8
- Record sealing following acquittal – factual innocence – PC § 851.85
- Record sealing following conviction – factual innocence – PC § 851.86
- Record sealing following non-drug DEJ – PC § 851.87
- Record sealing & registration following identity theft – PC § § 530.6/530.7
- Record sealing following drug diversion – PC § 851.90
- Juvenile Record Sealing & Other Juvenile Record Remedies – W & I Code §§ 781, 1772, 1179, PC § § 851.7, 1203.47
- Automatic destruction of records of some marijuana arrests/convictions – HS § 11361.5
* Commonly referred to as “expungement,” though does not include sealing
II. Discretionary Restoration Mechanisms
A. Governor’s Pardon
For persons convicted of no more than one felony, the pardon power rests exclusively with the governor, who may request investigation and advisory recommendation from the Board of Parole Hearings (formerly the Board of Prison Terms). Cal. Const. art. V, § 8(a); Cal. Penal §§ 4800, 4812-4813. “The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring.” Cal. Const. art. V, § 8. The governor is required by statute to refer applications from persons convicted of two or more felonies to the BPH (though he is not bound by its recommendation). Cal. Penal § 4802. The BPH, “after investigation, shall transmit its written recommendation upon such application to the Governor, together with all papers filed in connection with the application.” § 4813. Governor required by the constitution to report to the legislature “each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it.” Cal. Const. art. V, § 8; Cal. Penal § 4852.16.
By statute, the Board of Parole Hearings consists of 17 commissioners appointed by the governor to staggered three-year terms, which may be renewed. Commissioners are full-time employees, and can be removed by the governor only for misconduct or incompetence or neglect, after a full hearing.7 Cal. Gov. Code § 12838.4; see also Board of Parole Hearings, Dep’t of Corrs. & Rehab., http://www.cdcr.ca.gov/BOPH/. Currently, only 12 commissioners sit on the Board. Board of Parole Hearings, Dep’t of Corrs. & Rehab, http://www.cdcr.ca.gov/BOPH/ (last visited March 17, 2016).
Instructions issued by the Governor’s Office describe a pardon as follows: :
A gubernatorial pardon is an honor that may be granted to people who have demonstrated exemplary behavior following their conviction. A pardon will not be granted unless it has been earned. Obtaining a pardon is a distinct achievement based upon proof of a productive and law-abiding life following conviction. Historically, governors have granted very few pardons.
Office of the Governor, How to Apply for a Pardon, available at http://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf (revised Sept. 5, 2013).
Absent extraordinary and compelling circumstances, an application will not be considered unless the applicant has been discharged from probation or parole for at least 10 years without further criminal activity during that period. Federal offenders and persons convicted under the laws of a state other than California are ineligible for a gubernatorial pardon, and may regain their civil rights (other than the right to vote) only through a pardon or similar action in the jurisdiction of their conviction.
There are two procedural routes to pardon. For those who reside in the state, the pardon process ordinarily starts with an application for a Certificate of Rehabilitation in the county of residence. Convicted persons who reside outside the state, or who are otherwise ineligible for a COR (e.g. misdemeanants, certain sex offenders) may apply directly to the governor. See How to Apply for a Pardon, supra.
Certificate of Rehabilitation
The process for petitioning for a Certificate of Rehabilitation (COR) is described in Part II-B-3, infra. If a COR is issued, the court forwards to governor (and Supreme Court in the case of person convicted of more than one felony) with a recommendation that the individual be pardoned. Cal. Penal § 4852.14. The forwarded certificate itself serves as an application for pardon. § 4852.16. Upon receipt of COR and recommendation from court, governor may request that BPH investigate and make a recommendation. § 4812. 8. DA and court are asked for views. § 4803. Indigent persons seeking a pardon through a certificate of rehabilitation are entitled to representation by a public defender. § 4852.08; Ligda v. Superior Court of Solano County, 85 Cal. Rptr. 744, 752 (Cal. Ct. App. 1970).
If the applicant was twice convicted of a felony, the governor must receive a recommendation from a majority of the Supreme Court before granting. § 4852.16 No requirement that governor seek Court’s recommendation, and governor is not bound to grant if Court so-recommends. If recommendation is sought, Court holds a hearing and application is treated like a case and assigned a number. Cal. Sup. Ct., Internal Operating Practices and Procedures, § XIVA, XV. BPH is obligated to make a recommendation in these cases as well, but this does not limit the governor’s ability to act. § 4813. Notice must be given to DA at least 10 days before action. § 4804.
(Persons ineligible for Certificate of Rehabilitation) – Process explained in “How to Apply for a Pardon,” supra. Application available at https://www.gov.ca.gov/docs/Application_for_Pardon.pdf. Applications are made directly to the governor, and court of conviction, DA, BPH, and the Supreme Court serve the same roles described above. See Cal. Penal §§ 4801 – 4813. There is no right to a public defender in direct pardon cases.
The right to possess a firearm is restored upon a full and unconditional pardon based upon a COR, except when the underlying offense involved the use of a dangerous weapon. Cal. Penal § 4852.17. A “direct” pardon only restores firearms rights if specified, and the same exception for dangerous weapon offenses applies. See § 4854. Only a pardon restores civil rights See Office of the Governor, How to Apply for a Pardon, available at http://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf, comparing the effect of pardon and COR. A pardon based on a COR must be recorded on the person’s criminal record and reported to the FBI. § 4852.17.
Frequency of Grants
As of April 15, 2017, Governor Jerry Brown had issued 929 pardons during his third and fourth terms as governor. See Gov. Jerry Brown issues pardons, commutes sentences hours before Easter Sunday, http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-gov-jerry-brown-issues-pardons-1492284380-htmlstory.html. Most of Governor Brown’s pardons went to ordinary citizens of California, though one “celebrity” pardon was granted in 2015. See Jeremy White, Robert Downey Jr. among Jerry Brown’s 91 Christmas pardons, The Sacramento Bee, http://www.sacbee.com/news/politics-government/capitol-alert/article51502260.html (Dec. 24 2015). (During his first two terms (1976-1984) he issued 403 pardons.) Brown’s pardons are generally issued at Easter and Christmas. A majority of the convictions pardoned have been drug offenses, almost all more than two decades old, and all recipients residing in the state first received a certificate of rehabilitation from a court, in accordance with the established process. There are several thousand pardon applications filed each year through court-issued certificates of rehabilitation.
The pardoning record of recent previous governors is as follows: Governor Schwarzenegger issued only 16 pardons during his two terms, two to the same person. Governor Davis granted none; Governor Wilson granted 13; Governor Deukmejian, 328; Governor Jerry Brown, 403; Governor Reagan, 575. Source: California Board of Parole Hearings.
Office of the Governor
B. Judicial dismissal of charges and set-aside (“expungement”)
Probationers: In any case where a person sentenced to probation (including felony offenders, but not including any sex offenders) has successfully completed the sentence and has no charges pending, “or in any other case in which a court, in its discretion and in the interests of justice, determines that a defendant should be granted the relief available under this section,” the person shall
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 . . . .
Cal. Penal § 1203.4(a)(1). This relief is commonly known as “expungement” but does not have the effect of sealing the record, and does not entitled the recipient to deny having been convicted. Rather, it has the effect of releasing the offender “from all penalties and disabilities resulting from the offense of which he or she has been convicted.” § 1203.4(a) also provides that “the probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon.” No relief shall be granted under § 1203.4 unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. § 1203.4(e)(1).
Misdemeanants not sentenced to probation, and those convicted of infractions (including traffic infractions, possession of small amounts of marijuana), may apply for change of plea and dismissal of charges one year from entry of judgment, which the court “shall” grant if the petitioner can show, in addition to successful completion of probation and no charges pending, that they have, “since the pronouncement of judgment, lived an honest and upright life and ha[ve] conformed to and obeyed the laws of the land.” Cal. Penal § 1203.4a(a). In 2011 a provision was added providing that the court “may” grant relief to misdemeanants who do not satisfy the “honest and upright life” standards in (a). § 1203.4a(b). Anomalous higher standard under this provision compared to § 1203.4 is noted in People v. Bradley, 57 Cal. Rptr. 82, 84 (Cal. Ct. App. 1967).
Minor felony offenders sentenced to county jail: In October 2013 Governor Brown signed into law a new authority for courts to set aside the conviction of defendants sentenced to county jail for a felony under the so-called Realignment legislation enacted in 2011. A defendant so sentenced may withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty, after the lapse of one or 2 years following the defendant’s completion of the sentence, provided that the defendant is not currently serving a sentence or charged with the commission of any offense. Cal. Penal § 1203.41(a).
Proposition 47: Proposition 47 substantially expanded the number of offenses that are eligible for set-aside by reducing certain felonies to misdemeanors, and limiting sentences that may be imposed. A number of individuals previously convicted of felonies are permitted under this 2014 authority to return to court to have their convictions reduced to misdemeanors, and therefore become eligible for set-aside under Cal. Penal § 1203.4a. See Eliza Hersh, California’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights), Collateral Consequences Resource Center, http://ccresourcecenter.org/2014/12/01/californias-proposition-47-collateral-consequences-part-ii-reentry-restoration-rights (Dec. 1, 2014).
Proposition 64: Approved in November 2016, Proposition 64 (“Adult Use of Marijuana Act”) made a number of prior marijuana convictions eligible for set-aside, either directly or by reducing felony convictions to misdemeanors. See the helpful memorandum prepared by Judges Richard Couzens and Tricia Bigelow on “Resentencing Procedures and Other Selected Provisions” (November 2016), http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf.
Effect of dismissal/set-aside
While the authorities described above are frequently characterized as authorizing “expungement,” the dismissal of charges or set-aside of a conviction does not seal or otherwise limit public access to the record.10. Under Cal. Penal § 1203.4(a)(1), “the probationer shall be informed, that the order does not relieve him or her 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.” See, e.g., People v. Field, 31 Cal. App. 4th 1778 (1995) (“Expungement, however, does not obliterate a conviction for all purposes, and records of an expunged conviction are accessible to the public”).
Under California law, convictions that are set aside may be used when sentencing petitioner for subsequent convictions, for prosecution for possession of firearm by ex-felon, for purposes of California’s “three strikes” law, and for denial of professional licenses. See Doe v. Brown, 177 Cal. App. 4th 408, 423 (Cal. App. 2009)(sex offender whose conviction set aside pursuant to § 1203.4 still required to register); People v. Frawley, 98 Cal. Rptr.2d 555, 563-64 (Cal. App. 2000) (set-aside does not “expunge” conviction so as to restore firearms rights); see also Jennings v. Mukasey, 511 F.3d 894 (9th Cir. 2007)(set-aside under § 1203.4 does not “expunge” a prior conviction for purposes of eliminating liability under 18 U.S.C. § 922(g), the federal felon in possession statute). In addition, setting aside alien’s plea of guilty, substitution of plea of not guilty and dismissal of information pursuant to § 1203.4(a) does not expunge conviction for purposes of avoiding deportation. Garcia-Gonzales v. Immigration and Natur. Service, 344 F.2d 804, 806 (9th Cir. 1965), cert. denied, 382 U.S. 840 (1965). Finally, the 9th Circuit has held that state convictions that were “set aside” were not “expunged” for purposes of calculating defendant’s criminal history under United States Sentencing Guidelines. U.S. v. Hayden, 255 F.3d 768, 770 (9th Cir. 2001) (California set-aside does not amount to expungement under USSG 4A1.2(j)), cert. denied, 534 U.S. 969, 122 S. Ct. 383 (2001).
That said, there are substantial employment benefits for individuals in having a conviction set aside. See Cal. Labor Code § 432.7(a), discussed in Part III infra. Effective January 1, 2018, it will be an “unlawful employment practice,” enforceable by the California Fair Employment and Housing Commission, for a public or private employer to inquire into or seek information about a conviction that has been set-aside and dismissed pursuant to this authority. See Cal. Gov’t Code § 12952 (added by AB-1008 (2017)); see also Cal. Code Regs. tit. 2 § 11017(d)(1). State business and occupational licensing boards may not deny an applicant solely on the basis of a conviction that was set-aside and dismissed. Cal. Bus. & Prof. Code § 480(c).
The procedure for obtaining a dismissal or set-aside is explained at this advocacy website: Starting Over Strong, http://www.startingoverstrong.com/Home_Page.php. See also A Cost-Benefit Analysis of Criminal Record Expungement in Santa Clara County, Stanford University, Public Policy Program, https://publicpolicy.stanford.edu/publications/cost-benefit-analysis-criminal-record-expungement-santa-clara-county.
Under-age first offender misdemeanants
Misdemeanants who were under 18 at the time their crime was committed, and who are eligible for or who received relief under either 1203.4 or 1203.4a, may petition the court to have the record sealed. Cal. Penal § 1203.45(a).
Most juvenile adjudications may be sealed after 5 years upon petition to the court, by the individual or the probation department, after jurisdiction is terminated or after the child reaches age 18. Court must find that 1) the child has not subsequently been convicted of a felony or a misdemeanor crime of moral turpitude; and 2) that “rehabilitation has been attained to the satisfaction of the court.” See Cal. Welf. & Inst. § 781(a)(1)(A). DA must be notified. A sealing order may direct that a person be removed from sex offender registry. § 781(a)(1)(C). “The records shall be confidential and shall be available for inspection only by the court, jury, parties, counsel for the parties, and any other person who is authorized by the court to inspect them.” § 781(b). “Unless for good cause the court determines that the juvenile court record shall be retained, the court shall order the destruction of a person’s juvenile court records that are sealed pursuant to this section” after five years. § 781(d). DMV records remain available to insurers. § 781(c). Records of certain serious offenses committed after reaching age 14 may not be sealed. § 781(a)(1)(D). “Once the court has ordered a person’s records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events, the records of which are ordered sealed.” § 781(a)(1)(A). Effective January 1, 2015, the juvenile court or probation officer must inform any person brought within their jurisdiction of the availability of sealing, and must develop explanatory materials. See § 781(h).
Cal. Penal § 851.8(d): In any case where a person has been arrested and an accusatory pleading has been filed, but where no guilty plea or conviction has occurred, the court may, with the concurrence of the prosecuting attorney, order that the records be sealed and destroyed. Most juvenile misdemeanor arrest records may be sealed pursuant to § 851.7(a).
Expungement of certain marijuana convictions and arrests
Cal. Health & Safety Code §11361.5: Authorizes destruction of arrest and conviction records for possession or transportation of small amounts of marijuana violations of marijuana laws, either by adult and juvenile offender, two years from the date of conviction or arrest if no conviction. Where violation occurs on school property by a person under the age of 18, “the records shall be retained until the offender attains the age of 18 years at which time the records shall be destroyed as provided in this section.”
** See Part III for discussion of prohibition on employer inquiry into and consideration of non-conviction records, sealed records, convictions that have been dismissed or set aside **
D. Certificate of Rehabilitation
A California resident convicted of a state law offense may apply to the Superior Court of his county of residence for a Certificate of Rehabilitation (COR). Cal. Penal §§ 4852.01 through .06, 4852.19. The COR is an order embodying a court’s finding that the defendant is rehabilitated and its recommendation that he be pardoned. § 4852.13; see Section IIA, supra. To obtain a COR, a convicted person must complete his or her sentence and period of parole, remain a resident of the state for a specified period with no further violations of the law, demonstrate good conduct, and satisfy other statutory requirements. §§ 4852.01, 4852.03, 4852.05, 4852.06. Prison wardens are required to advise prisoners of their right to apply for a COR upon their release from prison. § 4852.21.
A person may apply to court after completion of “period of rehabilitation” running from release from prison or release on probation: five years’ residence in CA plus four years for serious offenses and two years for less serious offenses. Court may order additional years in case of concurrent sentences. (Sex offenders who are required to register, except for indecent exposure, have an additional five-year waiting period, for a total necessary rehabilitation period of 10 years.) § 4852.03. Effective January 1, 2014, a trial court hearing an application for a COR before the applicable period of rehabilitation has elapsed may grant the application if the court, in its discretion, believes relief serves the interests of justice. § 4852.22.
Persons convicted of misdemeanors are ineligible to obtain a COR, except for certain sex offenders. See Newland v. Board of Governors 19 Cal. 3d 705, 712-714 (Cal. 1977).
Sections 480(b) and 490 of the California Business & Professional Code provide that no one who has been granted a COR shall be denied an occupational license “solely” on the basis that he has been convicted of a felony. See Part III, infra. See also Cal. Ed. Code § 44346.1(d) (teacher’s certificate; mandatory bar converted to discretionary). A COR mitigates the effect of some statutory employment barriers by removing mandatory bars, serving as a basis for waiver, and evidencing rehabilitation. See, e.g., Cal. Health & Safety § 1522(g)(1)(A)(ii) (waiver for licensed community care facility employment; certain offenses excepted); Cal. Admin. Code tit. 10, § 3723 (factors into rehabilitation determination for real estate appraiser license); Cal. Ed. Code § 44830.1(f) (public school employment; may not deny solely on the basis of conviction if COR issued). See also Doe v. Saenz, 45 Cal. Rptr. 3d 126, 142-43 (Cal. App. 2006) (limitation of certificate to certain serious offenses in connection with employment in community care and childcare facilities violates Equal Protection).
A COR provides relief from sex offender registration obligations for less severe offenses. See Cal. Penal § 290.5.
A COR does not restore civil rights, seal or expunge a criminal record, or allow an applicant for employment to claim they have not been convicted of a crime. See Office of the Governor, How to Apply for a Pardon, available at http://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf.
Procedure for Applying
The petition for COR must be filed in the superior court of the applicant’s current county of residence. Cal. Penal § 4852.06. The petition form can usually be obtained from the court clerk, probation department, or public defender’s office. The petitioner is required to notify the district attorney in their county of residence and the district attorney of each county in which the petitioner was convicted of a felony. The notice must identify all crimes for which the person is requesting a COR. The form for sending these notices can also be obtained from the court clerk, probation department, or public defender. Once a petition is filed, the court will schedule a hearing. Before the hearing, the court may require an investigation by the district attorney. § 4852.10. At the hearing, the court may require testimony and records pertaining to the petitioner, including information about the conviction offense and the person’s conduct while incarcerated and since release.
The petition form and additional information is available here: http://www.sdcourt.ca.gov/pls/portal/docs/PAGE/SDCOURT/GENERALINFORMATION/FORMS/CRIMINALFORMS/PKT016.PDF.
Persons applying for a COR are entitled to assistance in processing their petitions from the county probation office(s), state parole office(s), and for persons under the age of 30, from the California Youth Authority. The person may also be represented by counsel of his or her own selection. If the person does not have counsel, he or she may be represented by the public defender, the probation department, or the court may assign counsel. Cal. Penal § 4852.08.
Except as otherwise provided in subdivision (b), if after hearing, the court finds that the petitioner has demonstrated by his or her course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship, the court may make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner. This order shall be filed with the clerk of the court, and shall be known as a certificate of rehabilitation.
(Exception in subsection (b) for registered sex offenders “if the court determines that the petitioner presents a continuing threat to minors . . .”).
E. Felony treated as misdemeanor (“Wobbler” offenses)
A crime that is otherwise a felony (“punishable by either imprisonment in the state prison or the county jail”) may be treated as a misdemeanor “for all purposes” if the court imposes punishment other than a state prison term, or “grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” Cal. Penal § 17(b)(1) and (b)(3). Also, the prosecutor may file a complaint treating the offense as a misdemeanor. § 17(b)(4). Upon a request by California’s Commission on Peace Officer Standards and Training, the California Attorney General opined that the Commission’s power to revoke a peace officer license when an officer is convicted of a felony did not extend to convictions under § 17(b) which are to be treated as misdemeanors “for all purposes” unless the conduct itself involved moral turpitude or some other indication of the applicant’s unfitness to be a peace officer. 76 Op. Cal. Att’y Gen. 270, 275 (1993). However, while a blanket prohibition would be inappropriate in light of the purposes of § 17(b), case-by-case analysis of an applicant’s conduct would permit denial of licensure by the California Commission on an individual basis.
III. Nondiscrimination in Licensing and Employment
Cal. Bus. & Prof. Code, §§ 480 et seq. contains detailed provisions for considering conviction in the context of licensing. The list of boards covered by these provisions is at http://www.dca.ca.gov/about_dca/entities.shtml.
Denial of license – Effect of Certificate of Rehabilitation/dismissal/
Cal. Bus. & Prof. § 480(b) prohibits denial of a license based on a felony conviction if the person has received a certificate of rehabilitation, or based on a misdemeanor conviction if the person is deemed rehabilitated:
(b) Notwithstanding any other provision of this code, a person shall not be denied a license solely on the basis that he or she has been convicted of a felony if he or she has obtained a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code or that he or she has been convicted of a misdemeanor if he or she has met all applicable requirements of the criteria of rehabilitation developed by the board to evaluate the rehabilitation of a person when considering the denial of a license under subdivision (a) of Section 482.
Sections 481 and 482 provide that each Board must develop criteria for determining rehabilitation, for considering rehabilitation, and for determining substantial relationship. For example, criteria for determining rehabilitation for real estate appraiser license in Cal. Code Regs. tit. 10 § 3723, include passage of time, restitution to victim, judicial relief (certificate of rehabilitation), evidence of involvement in community and stability of family life, abstinence from controlled substances, testimony of affiant. For procedure for denial of license based on conviction, see Cal. Bus. & Prof. §§ 485-489.
Cal. Bus. & Prof. Code § 480(c) provides that a license may not be denied solely on the basis of charges that have been dismissed or a conviction that has been set aside under Cal. Penal §§ 1203.4, 1203.4a, or 1203.41.
Suspension and revocation of license
Cal. Bus. & Prof. § 490: A board may suspend or revoke a license on the ground that the licensee has been convicted of a crime only if the crime is “substantially related” to the qualifications, functions, or duties of the business or profession for which the license was issued. Compare Petropopulos v. Department of Real Estate, 47 Cal. Rptr 3d 812, 822-23 (Cal. App. 2006), modified on denial of rehearing (misdemeanor domestic battery not substantially related to real estate license) with Robbins v. Davi, 95 Cal. Rptr. 3d 792, 797 (Cal. App. 2009) (misdemeanor building code violations substantially related to license as real estate broker). See § 494 for procedures for suspension and revocation.
Recognition of prison training in qualifications for license
[A]ny individual who, while imprisoned in a state prison or other correctional institution, is trained, in the course of a rehabilitation program approved by the particular licensing agency concerned and provided by the prison or other correctional institution, in a particular skill, occupation, or profession for which a state license, certificate, or other evidence of proficiency is required by this code shall not, when released from the prison or institution, be denied the right to take the next regularly scheduled state examination or any examination thereafter required to obtain the license, certificate, or other evidence of proficiency and shall not be denied such license, certificate, or other evidence of proficiency, because of his imprisonment or the conviction from which the imprisonment resulted, or because he obtained his training in prison or in the correctional institution, if the licensing agency, upon recommendation of the Adult Authority or the Department of the Youth Authority, as the case may be, finds that he is a fit person to be licensed.
Applications for Employment: Effective January 1, 2018, a new fair employment law significantly limits discrimination against applicants for public and private employment based on their criminal history, repealing an earlier more limited “ban-the-box” law applicable to public employment only. See Cal. Gov’t Code § 12952 (added by AB-1008 (2017)). The new law makes it an “unlawful employment practice” under the state’s Fair Employment and Housing Act (FEHA) for a covered employer to inquire about an applicant’s criminal history until after a conditional offer of employment is made. (The ban-the-box law applicable to public employment in effect prior to January 1, 2018 permits a background check at the point the agency determines the applicant “meets the minimum employment qualifications for the position.” See Cal. Labor Code § 432.9(a)(2013).)
In any subsequent criminal history background check, it violates the Act for the employer to “consider, distribute, or disseminate information about” any of the following:
(A) Arrest not followed by conviction [except for arrests where charges are pending and the person is free on bail or out on their own recognizance, and for certain arrests when seeking employment at a health care facility].
(B) Referral to or participation in a pretrial or posttrial diversion program.
(C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
§ 12952(a)(3). The new law also appears to prevent background screening companies from reporting the same information insofar as they are acting as agents for a covered employer “while conducting a conviction history background check in connection with any application for employment.” See § 12952(a)(3); § 12926(d) (including in the definition of “employer” “any person acting as an agent of an employer, directly or indirectly”). See discussion of California’s Investigative Consumer Reporting Agencies Act, below.
As to convictions, the new law provides that an employer may reject an applicant based in whole or in part on conviction information only after making “an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.“ § 12952(c)(1)(A). In making that assessment, an employer must consider:
(i) The nature and gravity of the offense or conduct.
(ii) The time that has passed since the offense or conduct and completion of the sentence.
(iii) The nature of the job held or sought
Id. Employers that make a preliminary decision to reject an applicant thereafter must provide the applicant written notification of the decision, identify the disqualifying conviction, and include a copy of any criminal history report used by the employer. § 12952(c)(2). An applicant has five days to respond that he or she intends to dispute the accuracy of the criminal history report and five days thereafter to submit evidence supporting the dispute. § 12952(c)(3). Employers may not make a final decision to reject an applicant during that period and must consider the evidence submitted by the applicant when making a final decision. § 12952(c)(2) – (4). If a final decision is made to reject, the employer must notify the applicant of the right to file a complaint with the Department of Fair Employment and Housing and of “any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.” § 12952(c)(5).
The new law applies only to employers with five or more employees and does not apply to any position where an employer 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; to employment with law enforcement; or to employment as a farm labor contractor. §§ 12926(d), 12952(d).
Violations of FEHA are enforced by the Department of Fair Employment and Housing, the agency charged with administration and enforcement of the state’s civil rights laws. While California law already prohibits employer consideration of arrests not resulting in conviction and convictions that have been dismissed or set aside, see Cal. Labor Code § 432.7(a) (discussed below), the new law adds significant administrative enforcement authority to existing law, making consideration of any of the non-conviction records specified in § 12952(a)(3) an “unfair employment practice.”
On the other hand, it is less clear whether DFEH will be in a position to enforce the provisions of § 12952(c) that establish standards and procedures applicable to consideration of conviction records, since these are less clearly among the “unfair employment practices” prohibited by § 12952(a).
It is also unclear what effect the enactment of § 12952 will have on regulations that the Department of Fair Employment and Housing promulgated in 2017 related to criminal history consideration. These regulations provide that consideration of criminal history by employers may violate the state’s Fair Employment and Housing Act if it has “an adverse impact on individuals on a basis protected by the Act, including, but not limited to, gender, race, and national origin.” Cal. Code Regs. tit. 2 § 11017.1(d) – (g). Because the regulations are not coextensive with § 12952 and because they are rooted in a theory of liability not based directly on criminal history discrimination, it is possible that they may provide an alternate path to relief for some applicants disqualified due to criminal history.
Consideration of non-conviction records of employees and applicants for employment: The Fair Chance Act described above overlaps significantly with provisions of Cal. Labor Code § 432.7(a) that prohibit public and private employers in most situations from inquiring into or considering any arrest or detention that did not result in conviction, resulted in referral to any pretrial or post-trial diversion program, any conviction that has been ordered sealed, or judicially dismissed or set aside pursuant to Cal. Penal §§ 1203.4, 1203.4a, 1203.41, or 1203.345, or any arrests, dispositions, or other actions that occurred under juvenile court jurisdiction. See Part II, supra. Cal. Labor Code § 432.8 further specifies that employers may not inquire about non-felony marijuana convictions more than two years old. These prohibitions on inquiry do not apply if the employer is required by law to obtain that information, the applicant would be required to possess or use a firearm in the course of his or her employment, an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been sealed, statutorily eradicated, or judicially dismissed following probation, or if the employer is prohibited by law from hiring an applicant who has been convicted of a crime.
See also Cal. Labor Code § 432.7 (g)(1)-(3) (law enforcement agencies and others authorized to receive criminal history information may not disclose “with intent to affect a person’s employment” any information about arrest not resulting in conviction, or about referral to pretrial or post-trial diversion program).
Additional public employment protections
Cal. Gov. Code § 11546.6 requires that a person who is rejected as a result of a criminal background check by a state agency for employment, contract, or volunteer work involving confidential or sensitive information, must be provided with a copy of his or her criminal record. Additionally, this law requires the state to institute a written appeals process for rejected individuals to challenge ineligibility determinations based on the individual’s criminal record.
C. Regulation of background-checking
California’s Investigative Consumer Reporting Agencies Act, Cal. Civ. C. § 1786 et seq. (the California analogue to FCRA), provides:
No consumer credit reporting agency shall make any consumer credit report containing any of the following items of information:
(6) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that in the case of a conviction a full pardon has been granted, or in the case of an arrest, indictment, information, or misdemeanor complaint a conviction did not result.
Background check companies “may not make an inquiry for the purpose of preparing an investigative consumer report on a consumer for employment purposes if the making of the inquiry by an employer or prospective employer of the consumer would violate applicable federal or state equal employment opportunity law or regulation.” Cal. Civ. C. § 1786.20(c). Note that by inquiring into and reporting misdemeanors dismissed pursuant to Cal. Penal §§ 1203.4, 1203.4a, the background check company is going beyond what a private employer can do.
Effective in January 2013, every entity that conducts a criminal background check under the mandate of a state or local occupational or licensing law must automatically provide the subject of the background check with a copy of his or her state and federal rap sheet whenever the agency makes a negative decision based on the record. See Cal. Penal § 11105(t).12
See also Part III-B regarding the potential effect of the 2017 enactment of Cal. Gov’t Code § 12952 on the authority of background checking companies to report non-conviction information, including information on convictions that have been sealed, dismissed or set aside.
- Effective January 2017, “imprisoned” in section 2101 is defined as “currently serving a state or federal prison sentence,” making it clear that those serving felony sentences in county jails retain their voting rights. Cal. Elec. Code § 2101(c)(1) (as amended by AB-2466 (2016)).
- The Criminal Justice Realignment Act of 2011 (CJRA) created three new categories of sentencing for people convicted of low-¬level felonies: mandatory supervision, post–release community supervision (PRCS), and a term in county jail. In 2014, a California court held that those on mandatory supervision and PRCS must be permitted to vote, and the State agreed to recognize the voting rights of more than 50,000 people in these two categories. See Briefs and Orders in Scott v. Bowen at https://www.brennancenter.org/legal-work/scott-v-bowen; Press Release, California Secretary of State, Secretary Padilla Ends Appeal of Scott v. Bowen Case (Aug. 4, 2014), http://www.sos.ca.gov/administration/news-releases-and-advisories/2015-news-releases-and-advisories/secretary-padilla-ends-appeal-scott-v-bowen-case/. In 2016, AB 2466 amended the Elections Code to reflect the decision in Scott v. Bowen and clarified that the third category of CJRA sentencing – a term in county jail – likewise does not strip people of the right to vote. See note 1, supra.
- In an opinion dated October 31, 2008, the General Counsel, Administrative Office for U.S. Courts, opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole. (Opinion on file with author.)
- § 4852.17:
Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including, but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 17800 and 23510 and Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.
- In 2007, the federal court of appeals for the 9th Circuit followed Frawley in holding that a set-aside under § 1203.4 does not “expunge” a prior conviction for purposes of eliminating liability under 18 U.S.C. § 922(g), the federal felon in possession statute. See Jennings v. Mukasey, 511 F.3d 894 (9th Cir. 2007). However, that court had earlier held in U.S. v. Laskie, 258 F.3d 1047 (9th Cir. 2001) that a Nevada conviction that had been set aside could not serve as predicate felony for federal firearms prosecution.
- Law enforcement personnel with a single misdemeanor domestic violence conviction may petition the court to regain firearms rights, but only once. § 29855(a). “In making its decision, the court shall consider the petitioner’s continued employment, the interest of justice, any relevant evidence, and the totality of the circumstances. The court shall require, as a condition of granting relief from the prohibition under this section, that the petitioner agree to participate in counseling as deemed appropriate by the court.” § 29855(e). Persons subject to this prohibition by virtue of a conviction prior to the date of enactment may also petition the court for relief, but here again only once. § 29860(a). In making its decision, the court may consider the interest of justice, any relevant evidence, and the totality of the circumstances. It is the intent of the Legislature that courts exercise broad discretion in fashioning appropriate relief under this paragraph in cases in which relief is warranted.” § 29860(e).
- Effective July 1, 2005, a new California Department of Corrections and Rehabilitation (CDCR) assumed responsibility for all correctional services. The BPH was created by collapsing three boards into one – the BPT, Youthful Offender Parole Board, and the Narcotic Addict Evaluation Authority. See CA SB 737 (enrolled May 10, 2005).
- Cal. Penal § 4812:
[T]he board shall examine and consider all applications so referred and all transcripts of judicial proceedings and all affidavits or other documents submitted in connection therewith, and shall have power to employ assistants and take testimony and to examine witnesses under oath and to do any and all things necessary to make a full and complete investigation of and concerning all applications referred to it.
- Cal. Penal § 4852.15:
Nothing in this chapter shall be construed to abridge or impair the power or authority conferred by law on any officer, board, or tribunal to revoke or suspend any right, privilege, or franchise for any act or omission not involved in his or her conviction, or to require the reinstatement of the right or privilege to practice or carry on any profession or occupation the practice or conduct of which requires the possession or obtaining of a license, permit, or certificate. Nothing in this chapter shall affect any provision of Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code or the power or authority conferred by law on the Board of Medical Examiners therein, or the power or authority conferred by law upon any board that issues a certificate permitting any person to practice or apply his or her art or profession on the person of another. Nothing in this chapter shall affect any provision of Chapter 4 (commencing with Section 6000) of Division 3 of the Business and Professions Code or the power or authority in relation to attorneys at law and the practice of the law in the State of California conferred by law upon or otherwise possessed by the courts, or the power or authority conferred by law upon the State Bar of California or any board or committee thereof.
However, per Cal. Bus. & Prof. § 480(b), a license may not be denied solely on the basis of a felony if the applicant possesses a Certificate of Rehabilitation (COR). See also Part III-A, infra.
- See Jeffrey Selbin, et al., Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Crim. L. & Criminology No. 1 at 34 (2017)(“Although the dismissal remedy is often referred to as ‘expungement,’ it does not result in the destruction of the criminal record. Instead, the dismissal releases the person “from all penalties and disabilities” resulting from the conviction.
- Because the California’s ICRRA antedates the federal FCRA, its stricter limitations on credit reporting companies are not preempted by 15 U.S.C.§ 1681t(a). See Love et al, Collateral Consequences of Criminal Conviction § 5:31.
- See Madeline Neighly & Maurice Emsellem, National Employment Law Project, Wanted: Accurate Background Checks for Employment 24 (July 2013), available at http://www.nelp.org/content/uploads/2015/03/Report-Wanted-Accurate-FBI-Background-Checks-Employment.pdf:
[I]n FY 2011/12, California exceeded one million FBI criminal background checks for employment and licensing purposes, thus representing a considerable share of the nearly 17 million rap sheets generated by the FBI for employment screening. California laws mandating FBI background checks cover a range of occupations, with the highest volume of FBI background checks produced for school employees, social services workers, private security guards, healthcare workers, and law enforcement personnel. California lawmakers and state officials have taken their responsibility seriously to ensure that the large numbers of FBI checks conducted for employment and licensing purposes are up to date and that workers have the information they need to verify accuracy. While the California state repository only has dispositions for 57 percent of all arrests, the California Department of Justice timely ensures the completeness and accuracy of records that are requested for employment and licensing decisions.