Restoration of Rights & Record Relief
Last updated: April 3, 2020
I. Loss and restoration of civil/firearms 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. 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)). 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.1 People on on federal supervised release should be regarded as similarly situated.2
Prior to October 2019, persons convicted of “malfeasance in office or a felony” were prohibited from service on a jury, unless pardoned. Cal. Civ. Proc. § 203(a)(5). SB 310 amended this provision to restore eligibility for civil trial juries automatically upon completion of sentence, including parole or other community supervision.
The California Constitution disqualifies from public office (broadly defined to include those employed at will by elected officials) 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 § 1021.5; Cal. Penal §§ 67, 68, 74, 88, 98. If lost, this right 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, may not own, purchase, receive, possess or exercise custody or control over any firearm. See Cal. Penal §§ 29800, 29805. People with federal offenses 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 may be restored by pardon based on a certificate of rehabilitation except when the underlying offense involved the use of a dangerous weapon. § 4852.17.3 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. People with federal offenses 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 in the jurisdiction of their conviction that expressly restores firearms rights. See 66 Op. Cal. Att’y Gen. 343 (1983). Set-aside of conviction does not restore gun rights under California 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.4 See also infra Part II B.
Certain misdemeanor offenses, including crimes involving a weapon or domestic violence, 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, 29860.5
E. Catalogue of California Relief Mechanisms
California offers a variety of routes to restoration of rights other than a governor’s pardon (see below). Relief available depends 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
- Dismissal of charges and set-aside – PC § 1170(h) sentence (retroactive)* PC § 1203.42
- 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 to 11361.8
- Sealing/reduction of decriminalized/reclassified marijuana offenses – HS § 11361.8
* Commonly referred to as “expungement,” though does not include sealing
II. Pardon policy & practice
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.
For persons convicted of two more more felonies, the governor is required by statute to refer applications 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. Under the California Constitution, 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 Court has recently interpreted its role in pardon cases as not to express a substantive view on the merits of an application but rather “to perform a more traditional judicial function: to determine whether the applicant’s claim has sufficient support that an act of executive clemency, should the Governor choose to grant it, would not represent an abuse of that power.”
Despite announcing a “very deferential” standard of review, the Court refused to approve six clemency grants by Governor Brown at the end of his term, to individuals convicted of murder decades before. IN one case he granted a pardon to avoid the individual’s deportation. The Court gave no reasons for its actions, but it may reasonably be assumed it considered these clemency actions an “abuse of power.”
The governor is 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.6 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. People with federal offenses or 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 people subject to sex offender registration requirements) 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 III-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. In 2018 this section was amended to add a new subsection (b) to require the Board of Parole Hearings to issue a pardon recommendation “within one year of receipt of the certificate.” See AB 2845. Any criteria established by the Governor shall be made publicly available, but shall be otherwise exempt from the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. Upon receipt of COR and recommendation from court, governor may request that BPH investigate and make a recommendation. § 4812. 7.
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.
A pardon restores civil rights lost, but does not seal or expunge the record of conviction. A pardoned conviction may not itself be grounds for denial of a license but may be taken into account in licensing proceedings. It also does not operate to restore firearms rights where the underlying crime involved use of a dangerous weapon. Cal. Penal §§ 4853, 48548
For the effect of a Certificate of Rehabilitation, see Cal. Penal § 4852.15, discussed in Part II-C, below. A pardon based on a COR must be recorded on the person’s criminal record and reported to the FBI. § 4852.17. Only a pardon restores civil rights lost as a result of conviction, including firearms 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.
F. Frequency of grants
Governor Gavin Newsom pardoned 22 individuals in 2019, his first year in office, on four separate occasions throughout the year. Most of his grants were based on a certificate of rehabilitation, and several went to non-citizens threatened with deportation. The grants and applications can be seen ikn the governor’s annual report to the legislature at https://www.gov.ca.gov/wp-content/uploads/2020/02/Executive-Report-on-Clemency-2019-signed.pdf.
Governor Jerry Brown issued a total of 1,332 pardons and 283 commutations during his third and fourth terms as governor, more grants than any other California governor. See Michael McGough, Court rejects Jerry Brown’s clemency orders for three more California killers, Sacramento Bee, Dec.28, 2018, https://www.sacbee.com/news/politics-government/capitol-alert/article223674630.html. Most of Governor Brown’s pardons went to ordinary citizens of California, though he also pardoned at least 11 non-citizens threatened with deportation (or in three cases already deported). See Jerry Brown Pardons Five Ex-Convicts Facing Deportation, Provoking Trump, N.Y. Times, April 1, 2018, https://www.nytimes.com/2018/03/31/us/california-pardon-immigrants.html; Defying Trump again, Jerry Brown pardons immigrants about to be deported, http://www.sacbee.com/news/politics-government/capitol-alert/article191430714.html. He also granted one “celebrity” pardon in 2015. See 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 who were convicted of felonies first received a certificate of rehabilitation (COR) from a court, in accordance with the established process. (Misdemeanants are not eligible for a COR relief, and so apply directly to the Governor’s Office, as do those who reside out of state.) 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 (first two terms), 403; Governor Reagan, 575. Source: California Board of Parole Hearings.
Office of the Governor
III. Expungement, sealing & other record relief
Clean slate relief: On October 8, 2019, AB 1076 was signed into law creating a new process of automatic record relief for some convictions and non-conviction records. Eligibility for relief under the new automatic process is similar but not identical to eligibility under the existing petition-based process described below. The new law also limits disclosure of records that have been dismissed or sealed. The new law is effective on January 1, 2021, and its automatic relief has prospective effect only. It is described in detail in the final section of this profile.
A. Dismissal of charges and set-aside (“expungement”)
Probation: In any case where a person sentenced to probation (including felony offenses, but not including any sex offenses) 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 entitle the recipient to deny having been convicted. Rather, it has the effect of releasing the person “from all penalties and disabilities resulting from the offense of which he or she has been convicted.” Section 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).
Misdemeanors not sentenced to probation, and 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). The 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).
Felonies reduced to misdemeanors: People with minor felony offenses whose convictions were reduced to misdemeanors, including felonies for which sentencing deferred (“wobblers”). Cal. Penal § 17(b)(3)(An offense is a misdemeanor for all purposes “[w]hen the court 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.”)
Minor felony offense sentenced to county jail (and those that would have been eligible for such a sentence): In October 2013 Governor Brown signed into law a new authority for courts to dismiss or set aside the convictions of defendants sentenced to county jail for a felony under the 2011 Realignment Legislation. See http://www.lao.ca.gov/reports/2011/stadm/realignment/realignment_081911.aspx. 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 sentence, provided that the defendant is not currently serving a sentence or charged with the commission of any offense. Cal. Penal § 1203.41(a).
Effective January 2018, the scope of relief authorized by the Realignment Legislation will be extended retroactively to individuals sentenced to state prison for a felony prior to its enactment, if they would have been eligible for sentencing to a county jail under its authority. Cal. Penal § 1203.42 (enacted by AB-1115 (2017)).
Proposition 47: Proposition 47 (2014) substantially expanded the number of offenses that are eligible for dismissal or set-aside by reducing certain felonies to misdemeanors, and limiting sentences that may be imposed. This authority was made retroactive permitting individuals previously convicted of felonies to return to court to have their convictions reduced to misdemeanors, and thereby to become eligible for dismissal or 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: Proposition 64 (2016) (“Adult Use of Marijuana Act”) legalized the possession of small amounts of marijuana (less than one ounce) and reduced criminal penalties for many remaining marijuana offenses. It applied its provisions retroactively by permitting individuals who have completed their sentence to petition the trial court to “redesignate” their offense as a misdemeanor or infraction if its level was reduced by Proposition 64. See Cal.Health & Safety Code § 11361.8(e). Redesignation is mandatory and no hearing is necessary. § 11361.8(f). Where a conviction was based on conduct that is no longer criminal, Proposition 64 also authorized sealing of the record. See Part IIC, below. The redesignation process, including eligibility requirements, is explained in a detailed memorandum prepared by Judges Richard Couzens and Tricia Bigelow on “Resentencing Procedures and Other Selected Provisions” (November 2016) (hereafter “Couzens/Bigelow memorandum”)., http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf.)
2. Effect of dismissal/set-aside
While the dismissal and set-aside authorities described above are frequently characterized as authorizing “expungement,” these dispositions do not seal or otherwise limit public access to the record. See Jeffrey Selbin, et al., Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Crim. L. & Criminology No. 1 at 34 (2017)(hereafter “Selbin et al, Unmarked”)(“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.”). The one exception is for decriminalized conduct, where Proposition 64 specifically authorizes sealing. See Part IIIC below. 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 dismissed or set aside may be used when sentencing petitioner for subsequent convictions, for prosecution for possession of firearm by a person with a felony conviction, for purposes of California’s “three strikes” law, and (with the caveat described in the following paragraph) for denial of professional licenses. See Doe v. Brown, 177 Cal. App. 4th 408, 423 (Cal. App. 2009)(person with sex offense 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 a non-citizen’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 dismissed or set aside. See Cal. Labor Code § 432.7(a), discussed in Part III infra. Effective January 1, 2018, it became 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).
In addition, 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).
For an analysis of the benefits of the dismissal/set-aside remedy, see Selbin et al., Unmarked, supra; Meyli Chapin, et al., 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.
3. Dismissal/set-aside procedure
The procedure for obtaining a redesignation or dismissal or set-aside is described in detail in the Couzens/Bigelow memorandum, supra, at 37-41, http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf. Whether an individual has a right to counsel may depend upon the stage of the proceeding. See id. at 41-43.
B. 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.
C. Sealing/destruction of records
1. Sealing of under-age first offense misdemeanors
People with misdemeanors 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).
2. Sealing and destruction of marijuana records
Sealing of decriminalized marijuana offenses: In 2016, the Adult Use of Marijuana Act (“AUMA”), or Proposition 64, allowed persons 21 years and older to ‘‘possess, process, transport, purchase, [or] obtain’’ up to an ounce of marijuana, and authorized courts ‘‘to designate or dismiss such offenses from the criminal records of persons who have completed their sentences.” Individuals who had completed a sentence for a marijuana offense that was decriminalized by Proposition 64 were authorized to petition the trial court to have the conviction “dismissed and sealed because the prior conviction is now legally invalid.” Cal. Health & Safety Code § 11361.8(e). Dismissal and sealing are mandatory, and no hearing is required. § 11361.8(f), (g). See Couzins/Bigelow memorandum, supra, at 40-41, for comments on the effect of sealing and applicable procedures.9
Systematic relief for decriminalized marijuana offenses: In 2016, Proposition 64 legalized certain marijuana-related activities and provided that individuals with a conviction for conduct that is no longer illegal, or is a lesser offense, may petition the trial court to resentence, dismiss and seal, or redesignate the conviction. Cal. Health & Safety Code § 11361.8.
AB 1793, enacted in September 2018, replaces the requirement of individualized filings (which had reportedly resulted in relatively few requests for relief) with an authority for systematic relief pursuant to a new Cal. Health & Safety Code § 11361.9. It provides that by July 1, 2019, the Department of Justice must identify eligible cases for possible resentencing, dismissal and sealing, or redesignation, and notify the prosecution of all eligible cases in its jurisdiction. By July 1, 2020, the prosecution must determine and notify the court and public defender whether it will challenge each case on the basis of eligibility or that the person presents “an unreasonable risk to public safety.” The public defender must make “a reasonable effort” to notify the person whose potential relief is being challenged. If the prosecution does not challenge a case, the court automatically provides the applicable relief.
Automatic purging of records of arrest and conviction of marijuana offenses: Proposition 64 supplements a statute enacted in 1976 by which records of arrest and conviction for possession or transportation of small amounts of marijuana, either adult or juvenile, “shall not be kept beyond two years from the date of the conviction or from the date of the arrest if there was no conviction . .. “ Cal. Health & Safety Code §11361.5(a). If the offense 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.” The method of “destruction” is explained in §11361.5(c).10
In 2016, Proposition 64 broadened this authority to apply to most marijuana offenses (including more serious ones) committed by individuals under age 18, and clarified that records must be “purged from the statewide criminal databases.” Records affected “shall include records of arrests resulting in the criminal proceeding and records relating to other offenses charged in the accusatory pleading, whether defendant was acquitted or charges were dismissed.”
3. Vacatur and sealing/destruction for victims of human trafficking
Cal. Penal § 236.14, enacted in 2016, provides that if a person was arrested for or convicted of any nonviolent offense committed while he or she was a victim of human trafficking, including, but not limited to, prostitution, the person may petition the court for vacatur relief of his or her convictions and arrests under this section. “The petitioner shall establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of human trafficking.” § 236.14(a). See also § 236.14(j)(juvenile arrest or adjudication while a victim of human trafficking). The court may “vacate the conviction and expunge the arrests” if it finds:
(1) That the petitioner was a victim of human trafficking at the time the nonviolent crime was committed.
(2) The commission of the crime was a direct result of being a victim of human trafficking.
(3) The victim is engaged in a good faith effort to distance himself or herself from the human trafficking scheme.
(4) It is in the best interest of the petitioner and in the interests of justice.
§ 236.14(g). It may also direct the relevant law enforcement agencies to “seal and destroy” the records of the arrest. § 236.14(k).
Effect of order:
If the court issues an order as described in subdivision (a) or (j), the court shall also order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner to seal their records of the arrest and the court order to seal and destroy the records for three years from the date of the arrest, or within one year after the court order is granted, whichever occurs later, and thereafter to destroy their records of the arrest and the court order to seal and destroy those records. The court shall provide the petitioner a copy of any court order concerning the destruction of the arrest records.
D. Non-conviction records – sealing
Until January 1, 2018, the only authority for sealing non-conviction records was in Cal. Penal § 851.8(d), which addressed situations where charges were filed but no guilty plea or conviction had occurred, and required concurrence of the prosecuting attorney. In addition, sealing was available where misdemeanors committed under age 21 were not followed by conviction. See § 851.7.
In October 2017 Governor Brown signed into law SB-393, repealing the authorities described above and creating broad new authority to seal records where no conviction resulted, effective January 1, 2018. The new authority applies to arrests where either:
(A) The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest.
(B) The prosecuting attorney filed an accusatory pleading based on the arrest, but, with respect to all charges, one or more of the following has occurred:
(i) No conviction occurred, the charge has been dismissed, and the charge may not be refiled.
(ii) No conviction occurred and the arrestee has been acquitted of the charges.
(iii) A conviction occurred, but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled.
Cal. Penal § 851.91(a)(1). Murder and other offenses that have no statute of limitations are ineligible (except in the case of acquittal or factual innocence), and sealing is unavailable for a person that “may still be charged with any of the offenses upon which the arrest was based,” or who “intentionally evaded law enforcement efforts to prosecute the arrest.” § 851.91(a)(2).
A petition for sealing may be filed at any time “in the court in which the accusatory pleading based on the arrest was filed or, if no accusatory pleading was filed, in a court with criminal jurisdiction in the city or county in which the arrest occurred.” § 851.91(b)(1)(B). Sealing is mandatory for eligible petitioners except where the arrest was for domestic violence, child abuse, or elder abuse and the person’s record demonstrates a “pattern” of related arrests or convictions. § 851.91(c)(1) & (2).11 In those cases, sealing is discretionary and requires “a showing that the sealing would serve the interests of justice.” § 851.91(c)(2)(A)(i).
Once the record is sealed, “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,” although significant exceptions apply. § 851.91(e)(2)(B). Exceptions are as follows:
(i) The sealed arrest may be pleaded and proved in any subsequent prosecution of the petitioner for any other offense, and shall have the same effect as if it had not been sealed.
(ii) The sealing of an arrest pursuant to this section does not relieve the petitioner of the obligation to disclose the arrest, if otherwise required by law, in response to any direct question contained in a questionnaire or application for public office, for employment as a peace officer, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
(iii) The sealing of an arrest pursuant to this section does not affect petitioner’s authorization to own, possess, or have in his or her custody or control any firearm, or his or her susceptibility to conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6, if the arrest would otherwise affect this authorization or susceptibility.
(iv) The sealing of an arrest pursuant to this section does not affect any prohibition from holding public office that would otherwise apply under law as a result of the arrest.
§ 851.91(e)(2)(B). “Arrest records, police investigative reports, and court records that are sealed under this section shall not be disclosed to any person or entity except the person whose arrest was sealed or a criminal justice agency.” § 851.92(b)(5).
In 2018, § 851.91(b)(2)(B) was added by AB 2599 to require any detention facility to post a notice informing anyone detained about the availability of sealing under any of the circumstances set forth above, and to provide them forms for this purpose upon their request.
** See Part IV for discussion of prohibition on employer inquiry into and consideration of non-conviction records, sealed records, convictions that have been dismissed or set aside **
E. Sealing and destruction of juvenile records
Juvenile records are generally unavailable to the public, except for those related to certain more serious offenses enumerated at Cal. Welf. & Inst. § 676, including many violent offenses and sex offenses. Cal Rules of Court, Rule 5.552.
California has four complex statutory mechanisms for juvenile record-closing: (1) petitions to seal and destroy records (California Welfare & Institutions Code Section 781, first enacted in 1961), (2) requests to seal and destroy unsustained juvenile contacts (Section 781.5, first enacted in 1999); (3) automatic sealing and destruction after dismissals (Section 786, first enacted in 2014, and amended in 2018); and (4) automatic sealing and destruction following diversion or supervision in lieu of a petition (786.5, first enacted in 2017). Each mechanism is described as follows:
1) Petitions to seal and destroy records: Under Section 781, most juvenile records may be sealed upon petition to the court, by the individual or the probation department, 5 years after jurisdiction is terminated, or, if no petition (charge) was filed, 5 years after citation to appear before a probation officer or being taken before a probation officer or officer of a law enforcement agency, or in any case after the child reaches age 18. Cal. Welf. & Inst. § 781(a)(1)(A). DA and probation officer must be notified. The 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.” Id. § 781(a)(1)(A). An unfulfilled order of restitution converted to a civil judgment is not be a bar to sealing, and outstanding restitution fines and court-ordered fees may not be considered when assessing whether a petitioner’s rehabilitation has been attained. Id. §§ 781(a)(2),(3). A sealing order must direct that a person be removed from a sex offender registry under Penal Code section 290 (if required to register) and order the destruction of all registration information. Id. § 781(a)(1)(C). A person whose records are sealed may petition the superior court to permit inspection of the records, and in an action based on defamation, a court, upon a showing of good cause, may order records sealed under this section to be opened and admitted into evidence, but only § 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 if alleged or adjudged under Section 601, at age 38 if alleged or adjudged under Section 602, and at no time for records of certain serious offenses listed at § 707(b). Id. § 781(d). DMV records remain available to insurers. Id. § 781(c). Effective January 1, 2018, records of certain serious offenses listed at § 707(b) committed after reaching age 14 may only be sealed after reaching age 18 (if not committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities) or age 21 (if so committed) unless the case was dismissed or the charge was reduced to a misdemeanor. Id. § 781(a)(1)(D), (E). 12 Sealing is unavailable for § 707(b) offenses for which sex offender registration is required if committed after attaining age 14. Id. § 781(a)(1)(F). “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.” Id. § 781(a)(1)(A). The juvenile court or probation officer must inform any person brought within their jurisdiction of the availability of sealing, and must develop explanatory materials. Id. § 781(h).
Effective October 8, 2019, AB1394 prohibited courts or the probation department from charging a fee for sealing of a juvenile record.
2) Requests to seal and destroy unsustained juvenile contacts: Under Section 781.5, where a minor was cited to appear before a probation officer, was taken before a probation officer or law enforcement officer, or was taken into temporary custody, and no accusatory pleading or petition was filed, the minor may request in writing that the law enforcement agency and probation officer destroy the records of arrest or citation (infraction cases are excluded). Id. §§ 781.5(a), (l), (m). A copy must be served on the DA. § 781.5(a) Upon a determination by the law enforcement agency and probation officer, with the concurrence of the DA, that the minor is factually innocent (no reasonable cause to believe offense committed), they, and any other such agency or officer that participated in the arrest or citation, and the Department of Justice must seal the records for three years from the date of the arrest or citation, and after that destroy the records. Id. They must also request the destruction of any records of the arrest or citation that they have given to any local, state, or federal agency or to any other person or entity. Id. If the request is denied, a petition may be made to the juvenile court (with the procedures laid out in § 781.5(b)). Id. Second, in any case where a minor has been arrested or cited, and an accusatory pleading or petition has been filed but not sustained, the minor may at any time after dismissal, request in writing from the court of dismissal a finding that the minor is factually innocent of the charges, with a hearing conducted (as described in § 781.5(b)), and if the court makes a finding of innocence, it must order the sealing and destruction of the records, in the manner described above. Id. §§ 781.5(c), (d). If during the underlying juvenile proceeding, it appears to the presiding judge that the minor was factually innocent of the offense, the court, upon the motion of any party or its own motion, may grant sealing and destruction in the manner described above. Id. Where relief is granted, the minor must be notified and “the arrest or citation shall be deemed not to have occurred and the minor may answer accordingly any question relating to its occurrence.” Id. § 781.5(f). When arrest or citation records are destroyed, documentation contained in investigative police reports must bear the notation “Exonerated” whenever reference is made to the minor. Id. If the minor or another individual arrested or cited for the same offense files a civil action against the peace officers, law enforcement agency, or probation officer that made the arrest, issued the citation, or commenced the proceedings, and the custodian of records receives a certified copy of the complaint, no records may be destroyed under this section until the civil action has been resolved—and if good cause is shown, sealed records may be opened by the civil court. Id. § 781.5(g).
3) Automatic sealing, and destruction after dismissal: Under Section 786, there are two grounds for relief. Id. § 786. First, if a juvenile satisfactorily completes either: (1) an informal program of supervision pursuant to Section 654.2; (2) probation under Section 725; or (3) a term of probation for any offense, the court must order the petition dismissed and seal all records pertaining to the dismissed petition in the custody of the juvenile court, and in the custody of law enforcement agencies, the probation department, or the Department of Justice. Id. § 786(a). The court must also “specify a date by which the sealed records shall be destroyed.” (If a record contains a sustained petition rendering the person ineligible to own or possess a firearm until 30 years old, the sealed records shall be destroyed when the person turns 33 years of age.) Id. An unfulfilled order or condition of restitution, including a restitution fine that can be converted to a civil judgment or an unpaid restitution fee is not deemed to be unsatisfactory completion of supervision or probation. Id. § 786(c). Dismissal and sealing is not available if a petition was sustained based on the commission of a serious offense listed in § 707(b) when the person was 14 years old or older, unless the finding was dismissed or reduced to a misdemeanor or a lesser offense not listed in § 707(b). Id. Second, if a person has their delinquency petition dismissed by the court—on the prosecution or the court’s motion—or if the court does not sustain the petition after an adjudication hearing, the court must order sealed all records pertaining to the dismissed petition in the custody of the juvenile court, law enforcement agencies, the probation department, and the Department of Justice; the court must specify a date by which the records are to be destroyed. Id. § 786(e). Upon request, the court may also seal records in the custody of a public agency other than those listed above, if sealing the additional record will promote “successful reentry and rehabilitation.” Id. § 786(f). The court, in entering a sealing order under this section may also seal or dismiss any prior petition(s) that have been filed or sustained, if they appear to meet the criteria in this Section. Id. § 786(e). After entering a dismissal and sealing order under this Section, the court shall provide notice to the person and advise them of their right to nondisclosure of the arrest and proceedings. Id. §§ 786(b), (e). “[T]he arrest and other proceedings in the case shall be deemed not to have occurred and the person who was the subject of the petition may reply accordingly to an inquiry by employers, educational institutions, or other persons or entities regarding the arrest and proceedings in the case.” Id. § 786(b). A record that has been sealed under this section may be accessed in a number of circumstances: (1) by a prosecutor, probation department, or court for certain enumerated purposes in subsequent juvenile delinquency cases and to meet compliance with specified federal statutes; (2) by the person whose record was sealed, upon petition to the court; (3) by a child welfare agency responsible for the supervision and placement of a minor or nonminor dependent to determining an appropriate placement or service ordered by the court; (4) by the Department of Justice to determine if the person is suitable to purchase, own, or possess a firearm, or for a prosecutor to evaluate charges, under Penal Code Section 29820; or (5) by a prosecutor to meet a statutory or constitutional obligation to disclose favorable or exculpatory evidence to a defendant in a criminal case, subject to a court review and determination prior to release of the records, with appropriate limits on access, inspection, and use. Id. § 786(g).
4) Automatic sealing and destruction following diversion or supervision in lieu of a petition: If a probation officer or prosecutor refers a juvenile to a program of diversion or supervision (including informal supervision under Section 654) in lieu of the filing of a petition, the probation department must determine, within 60 days of the completion of the program, the whether or not the completion was “satisfactory” (defined as “substantial compliance by the participant with the reasonable terms of program participation that are within the capacity of the participant to perform”). Id. §§ 786.5(a)(c). If the probation department determines the program was satisfactorily completed, it must seal the arrest and other records relating to the arrest or referral and participation in the diversion or supervision—as must the agency operating the diversion program. Id. § 786.5(a). The arrest or offense giving rise to participation in the program “shall be deemed not to have occurred and the individual may respond accordingly to any inquiry, application, or process in which disclosure of this information is requested or sought.” Id. § 786.5(a). The probation department must notify the person when the record has been sealed; if the record is not sealed, it must provide the reasons for denial in writing. Id. § 786.5(b). If a person receives notice of unsatisfactory completion, they may petition the juvenile court for review of the decision at a hearing. Id. § 786.5(d).
F. “Clean slate” automated relief for convictions and non-convictions (effective 2021)
On October 8, Governor Newsom signed into law AB 1076, authorizing automatic record relief in the form of set-aside or sealing for individuals with certain convictions and arrests under California law. The new law supplements but does not supplant the existing system of petition-based relief, and applies to convictions and arrests occurring after the bill’s effective date of January 1, 2021. Eligibility for automatic relief under the new law is similar to but not precisely coincident with eligibility under existing law. The new law also for the first time prohibits courts and the state repository from disclosing information about conviction records that have been granted relief, except where specifically authorized, whether under the new automatic process or the older petition-based system.
While the automatic feature of the new law has prospective effect only, its new limits on disclosure, when effective, will also apply to any conviction that has been in the past or may in the future be dismissed or set-aside by petition. The new law does not impose new limits on disclosure of arrests and other non-conviction records occurring prior to the law’s effective date, which must still be sealed under existing law.
1. Arrests after 1/1/21
A person arrested on or after January 1, 2021, is eligible for automatic relief if any of the following is true:
- The arrest was for a misdemeanor and either the charge was dismissed, the person was acquitted of any charges, or at least 1 year has elapsed since the arrest and there is no indication that criminal proceedings have been initiated;
- The arrest was for a felony punishable by imprisonment in county jail, and either the person was acquitted of any charges, or at least 3 years have elapsed since the arrest and there is no indication that criminal proceedings have been initiated; or
- The person successfully completed one of various specified diversion programs.
Cal. Penal Code section 851.93. (Note: this excludes an arrest for a felony punishable by imprisonment in state prison and dismissed cases where the arrest was for for a felony punishable by imprisonment, unless the person successfully completed a specified diversion program.)
The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with arrest records that are eligible for relief, and “shall grant relief” if such information is present in the records. On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted. The DOJ must annually publish statistics for each county regarding the total number of arrests granted relief and the percentage of arrests for which the state summary criminal history information does not include a disposition.
Effect of relief
Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “arrest relief granted,” and the date. The arrest “is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to that arrest accordingly,” except that relief does not affect:
- a person’s obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer;
- the ability of a criminal justice agency to access and use records, or a district attorney to prosecute an offense within the applicable statute of limitations;
- a person’s authorization to own or possess a firearm;
- any prohibition from holding public office; or
- the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria.
Starting on February 1, 2021, courts “shall not” disclose information concerning the arrest or case to any person or entity, in any format, except to the subject of the arrest, a criminal justice agency, or under one of the exceptions above.
2. Convictions after 1/1/21
A person convicted on or after January 1, 2021, is eligible for automatic relief if otherwise eligible under existing law, and if each of the following conditions are also true:
- the person is not required to register under the Sex Offender Registration Act;
- the person does not have an active record for local, state, or federal supervision;
- based on information in the DOJ record, it does not appear that the person is currently serving a sentence for any offense and there is no indication of pending criminal charges; and
- there is no indication that the conviction resulted in a sentence of incarceration in state prison, and either: (1) the defendant was sentenced to probation, and, based on DOJ’s records, appears to have completed probation without revocation; or (2) the defendant was convicted of an infraction or misdemeanor, was not granted probation, and, based on DOJ’s records, appears to have completed their sentence, and at least 1 year has elapsed since the judgment.
Cal. Penal Code section 1203.425. Nonetheless, even if a person is eligible, the prosecutor or probation department may file a petition to prohibit automatic relief “based on a showing that granting such relief would pose a substantial threat to the public safety.” The petition must be filed by 90 days before eligibility, and the court must give notice to the defendant and conduct a hearing within 45 days. (A person denied automatic relief can still petition for relief under existing law.)
The DOJ will be required to review the records in the statewide criminal justice databases on a monthly basis to identify persons with conviction records that are eligible for relief, and “shall grant relief, including dismissal of a conviction,” if such information is present in the records, unless a petition to prohibit relief has been granted. On a monthly basis, the DOJ must submit to the superior court a notice of all cases in that jurisdiction for which relief was granted. The DOJ must annually publish statistics for each county regarding the total number of convictions granted and prohibited from automatic relief.
Effect of relief
Following relief, all state summary criminal history information in all statewide criminal databases “shall include” next to or below the entry “relief granted” and the date. A person granted relief “shall be released from all penalties and disabilities resulting from the offense of which the person has been convicted,” except that the relief does not affect:
- the provisions of Section 13555 of the Vehicle Code;
- the obligation to disclose a criminal conviction in response to a direct question contained in a questionnaire or application for employment as a peace officer, public office, or for contracting with the California State Lottery Commission;
- the ability of a criminal justice agency to access and use records;
- the jurisdiction of the court over a subsequently filed motion to amend the record, petition or motion for postconviction relief, or collaterally attack a conviction;
- a person’s authorization to own or possess any firearm;
- a prohibition from holding public office;
- the authority to receive, or take adverse action based on, criminal history information or certified court records under various sections of the Health and Safety Code, or other provisions that incorporate those criteria;
- eligibility to provide, or receive payment for providing, in-home supportive services; or
- pleading and proof of the prior conviction in any subsequent prosecution of the defendant.
Beginning on February 1, 2021, courts “shall not” disclose information concerning the conviction to any person or entity, except to the person granted relief, to a criminal justice agency, or under one of the exceptions above. In addition, a sentencing court “shall advise” a defendant of the provisions of this section, as well as the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon.
3. Dissemination of records dismissed or set-aside prior to 1/1/21
Finally, by amendments to Cal. Penal Code section 11105(p)(2)(A) that are effective January 1, 2021, the state records repository system is prohibited from disclosing conviction records that have been dismissed or set aside, whether automatically or by petition, in response to certain requests for background information to be used for employment, licensing or certification. Exceptions in existing law where background checks are authorized by law apply (including law enforcement employment, health care licensure, and a variety of other authorized situations).
When effective, these non-disclosure provisions apply without regard to when or by what process relief was granted.
Both sections of the clean slate law make clear that they do not limit any petitions, motions, or orders for relief authorized or required under existing law.
G. Judicial 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. In 2018 the law was amended to permit application in the court of conviction. See AB 2845. The COR is an order embodying a court’s finding that the defendant is rehabilitated and its recommendation that the defendant 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 during a “period of rehabilitation” (see below), have 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.
The “period of rehabilitation” runs 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. The periods of rehabilitation called for in § 4852.03 were amended in 2017 by AB 384. Court may order additional years in case of concurrent sentences. (People who are required to register as sex offenders, except for indecent exposure, have an additional five-year waiting period, for a total necessary rehabilitation period of 10 years.) § 4852.03. 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 people required to register as sex offenders. See Newland v. Board of Governors 19 Cal. 3d 705, 712-714 (Cal. 1977).
2. Procedure for Applying
The procedure for applying for a Certificate of Rehabilitation is spelled out in Chapter 3.5 of the California Penal Code. A petition for a COR must be filed in the superior court of the applicant’s current county of residence or, effective January 1, 2019, in the court of conviction. 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.
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).
Sex offender registration: Until January 1, 2021, a COR may be the basis for relief from sex offender registration obligations for less severe offenses, Cal. Penal §§ 4852.03, 290.5, but after 2021 relief from registration obligations under a new three-tiered system is the responsibility of the superior court in the county in which the person is registered. See AB 2845 (amending Cal. Penal §§ 4852.03 and Cal. Penal § 290.5.
A COR does not restore civil rights (including firearms rights), seal or expunge a criminal record, or allow an applicant for employment to claim they have not been convicted of a crime. Other limitations on the general effect of a COR are spelled out in Cal. Penal § 4852.15.13. See also 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 a pardon and a COR.
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 people who are required to register as sex offenders “if the court determines that the petitioner presents a continuing threat to minors . . .”).
IV. Criminal record in employment & licensing
1. Nondiscrimination in employment under FEHA
Disclosure of non-conviction records in applications for employment:
In 2016, California prohibited public and private employers from inquiring into non-conviction records or records that have been expunged, sealed, or judicially dismissed or set aside following probation. See Cal. Labor Code § 432.7. See below.
Fair employment standards, including ban-the-box:
Ban-the-box: 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.14 “Covered employers” are defined in Cal. Gov’t Code § 12952(d) to exclude employers with fewer than five employees, and those required by law to conduct background checks. See below.
Consideration of criminal record: 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, or any conviction for which the convicted person has received a full pardon or has been issued a certificate of rehabilitation.”
§ 12952(a)(3). The final phrase of (C) was added to the law in 2018 by AB 2845. 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 not reject an applicant based in whole or in part on conviction information until it makes “an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justif[ies] 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, after taking into account these factors, to reject an applicant based upon a determination that the applicant’s conviction history has a “direct and adverse relationship with the specific duties of the job,” thereafter must provide the applicant written notification of the preliminary decision, identify the disqualifying conviction, and include a copy of any criminal history report used by the employer. § 12952(c)(2). The employer may but is not required to explain the reasoning behind its preliminary decision. 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). Again, the employer may but is not required to explain the reasoning behind its decision, and apparently the applicant is limited to disputing the accuracy of the conviction record. 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). Here again, the law does not appear to require an employer to have any such procedure.
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 inquiry into and consideration of arrests not resulting in conviction and (in certain circumstances) 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 “unlawful employment practice.”
However, it appears that an applicant informed of an employer’s intention to deny employment based on conviction history is limited to challenging the employer’s compliance with the law’s procedures, not the merits of a determination that conviction history has a “direct and adverse relationship with the specific duties of the job,”
It is 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.
Exclusions: 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. Cal. Gov’t Code §§ 12926(d), 12952(d). While the text of the law is unclear whether positions restricted to those convicted of certain offenses (e.g., sexual abuse or violence) are exempt from the law’s requirements where those convicted of other types of offenses are concerned, we believe the exception should be narrowly construed to track the specific restriction.
2. 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), which prohibits public and private employers in most situations from inquiring into or considering any arrest or detention that did not result in conviction or that 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 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, or is prohibited by law from hiring an applicant who has been convicted of a crime, or if individual who has been convicted of a crime is prohibited by law from holding the position sought, regardless of whether that conviction has been sealed, statutorily eradicated, or judicially dismissed following probation. They also do not apply if the applicant would be required to possess or use a firearm in the course of his or her employment.
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). See also Part III C (regulation of background checking), below.
In 2018 § 432.7(m) was amended to permit employers authorized to inquire about particular convictions or prohibited from hiring individuals with particular convictions, to inquire into records of those convictions even if they have been expunged, sealed, or judicially judicially dismissed or set aside. See SB 1412.
3. 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.
Cal. Bus. & Prof. Code, §§ 480 et seq. contains detailed provisions for considering criminal record in the context of licensing. The list of boards covered by these provisions is at http://www.dca.ca.gov/about_dca/entities.shtml. These provisions were revised in 2018 to prohibit consideration of certain criminal acts not resulting in conviction, and certain less serious convictions after seven years. However, these revisions do not take effect until July 1, 2020. See AB 2138.15
1. Substantial relationship standard
2. Effect of determination of rehabilitation
Cal. Bus. & Prof. Code § 480(b) currently 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 based on agency criteria:
(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 substantial relationship, and for determining rehabilitation in the case of misdemeanors. For example, regulations governing licensing of real estate appraisers describe substantial relationship in terms of broad categories of crimes, including fraud, theft, drug trafficking, DUI, crimes involving violence, and sexually related crimes (although respecting the last category alone, only if “that crime or act is substantially related to the duties and functions of the licensee”). See Cal. Code Regs. tit. 10 § 3722. These regulations also prescribe the weight to be accorded particular crimes depending upon their age and relative seriousness, extenuating or aggravating circumstances, likelihood of repetition, and (curiously) “the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the person involved or other licensed persons.” The real estate appraisers regulations also set forth criteria for determining rehabilitation that include the 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. Cal. Code Regs. tit. 10 § 3723.
In 2018, AB 2138 amended §§ 481 and 482, effective July 1, 2020, to require each licensing board to develop and publish criteria for determining substantial relationship, including the nature and gravity of the offense, time elapsed since its date, and the nature and duties of the profession. Boards must also develop and publish criteria for evaluating rehabilitation, which must now be considered for any conviction, not just misdemeanors: a board “shall not deny a license based in whole or in part on a conviction without considering evidence of rehabilitation submitted by an applicant pursuant to any process established in the practice act or regulations of the particular board and as directed by Section 482.” Cal. Bus. & Prof. § 481(c).
General procedures for denying a license based on arrest or conviction are set forth in Cal. Bus. & Prof. §§ 485-489, and include providing the reasons for the denial and an opportunity to be heard. Provisions for suspending or revoking a license based on conviction are set forth in §§ 490 et seq. (see discussion below).
3. Effect of dismissal or set-aside
Cal. Bus. & Prof. Code § 480(c) provides that a license may not be denied solely based on a conviction that has been dismissed or set aside under Cal. Penal §§ 1203.4, 1203.4a, or 1203.41.
4. 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 were substantially related to license as real estate broker). See § 494 for procedures for suspension and revocation.
5. 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.
In June 2018, California authorized the Department of Forestry and Fire Protection (CAL-FIRE) to certify or provisionally certify as “emergency medical responders” former prison firefighters who meet certain training requirements, regardless of a prior conviction, which qualifies them for some state firefighter jobs. AB 1812; Cal. Health & Safety Code § 1797.165.
AB 2293, enacted in September 2018, requires local emergency medical services agencies to annually and publicly report data on the approval or denial of Emergency Medical Technician certifications, including the number and demographic data of applicants with a prior criminal conviction who were denied, approved, or approved with restrictions; the reasons stated for denials or approvals with restrictions; the restrictions imposed; and the extent to which prior criminal history may be an obstacle to certification. Cal. Health & Safety Code § 1797.229.
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).17
See also Part IV-A regarding the apparent restrictions imposed on credit reporting companies by the 2017 enactment of Cal. Gov’t Code § 12952 on their authority to report information on convictions that have been sealed, dismissed or set aside (regarded as non-conviction information).
- 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. See Memorandum from Joe Gergits, Assistant General Counsel, AOUSC, October 31, 2008 (on file with authors).
- § 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 §§ 4853: In all cases in which a full pardon has been granted by the Governor of this state or will hereafter be granted by the Governor to a person convicted of an offense to which the pardon applies, it shall operate to restore to the convicted person, all the rights, privileges, and franchises of which he or she has been deprived in consequence of that conviction or by reason of any matter involved therein; provided, that nothing herein contained shall abridge or impair the power or authority conferred by law on any board or tribunal to revoke or suspend any right, privilege or franchise for any act or omission not involved in the conviction; provided further, that nothing in this article shall affect any of the provisions of the Medical Practice Act (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 which permits any person or persons to apply his or her or their art or profession on the person of another.
§ 4854: In the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise 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.
- “Clearly the court will be required to seal its own records of the conviction. Each court should develop a mechanism for physically sealing the file of a qualified conviction and make any necessary entries in its data system indicating the sealed status of the case. Thereafter, access to the sealed file and record of conviction would only be as authorized by court order. Without additional express language in section 11361.8(f), it is doubtful the court has further duties in the sealing of the record.”
- “Destruction of records of arrest or conviction pursuant to subdivision (a) or (b) shall be accomplished by permanent obliteration of all entries or notations upon the records pertaining to the arrest or conviction, and the record shall be prepared again so that it appears that the arrest or conviction never occurred. However, where (1) the only entries upon the record pertain to the arrest or conviction and (2) the record can be destroyed without necessarily effecting the destruction of other records, then the document constituting the record shall be physically destroyed.”
- “‘[P]attern’ means two or more convictions, or five or more arrests, for separate offenses occurring on separate occasions within three years from at least one of the other convictions or arrests.” § 851.91(c)(2)(A)(ii).
- Records subject to this limitation in eligibility may count as predicate offenses. Prior to the enactment of SB-312 (2017), offenses listed at § 707(b) committed after age 14 could not be sealed at all.
- 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.
- 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).
- The provisions of AB 2138 are discussed in detail in David Schlussel, California enacts modest occupational licensing reform, CCRC, Nov. 2, 2018, http://ccresourcecenter.org/2018/11/02/california-enacts-modest-occupational-licensing-reform/.
- 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.