California poised to expand record clearing to cover most felonies

NOTE: On September 29, Governor Newsom signed into law both of the bills discussed in the post below. They will take effect on January 1, 2023.   

California Governor Gavin Newsom is expected to sign this week two bills that will give that state the broadest record-clearing laws in the nation. Senate Bill 731 would extend both automatic and petition-based and record relief to felony-level offenses, while Senate Bill 1106 would preclude denial of relief based on outstanding court debt in most cases.

When signed into law, Senate Bill 731 will place California at the forefront of record clearing nationwide. It would expand automatic record relief to all felony non-convictions since January 1, 1973, six years after the date of arrest. California law currently excludes felony arrests from eligibility for automatic relief if the charge is serious enough to potentially result in incarceration at a state prison. Other felony non-convictions remain eligible for automatic relief after three years unless the charge was punishable by eight years’ incarceration or more in a county jail, for which the new six-year wait period applies.

SB 731 also expands eligibility for automatic relief to persons convicted of a felony and sentenced to probation on or after January 1, 2005, if they violated probation but later completed all terms of supervision. Current law excludes from relief anyone who violated their probation. The new law requires a four-year conviction-free period after completion of the sentence. This expansion of automatic relief does not apply to certain serious and violent felonies, and ones for which the person is required to register as a sex offender. As noted below, all but the last-mentioned category will now be eligible for relief by petition.

Even before enactment of SB 731, California is one of only six states in the nation to extend automatic record relief to felony convictions (Connecticut, Colorado, Delaware, Michigan, and New Jersey are the others). The four-year waiting period in the new law is the most progressive in the country for automatic relief, though some states have shorter waiting periods for petition-based relief. For a comparison, see CCRC’s recent report, “Waiting for Relief: A National Survey of Waiting Periods for Record Clearing,” and our Restoration of Rights Project’s 50-State Comparison for automatic record clearing.

The automatic relief provisions of SB 731 would take effect on July 1, 2023, subject to an appropriation in the legislature’s annual budget act. California has reportedly had some difficulty in effectuating the automatic provisions enacted in 2019 and 2021, so this promised new date for a large number of additional records must be taken with a grain of salt. According to a December 2021 op-ed (paywall) by Ericka Adams, an associate professor of criminal justice at San Jose State University, differing records at the state and county level have led to implementation issues for recent marijuana expungement legislation in California.

In addition to its provisions for automatic relief, SB 731 authorizes a major expansion to petition-based record relief. A person with any felony conviction can petition for relief two years after completion of their sentence, except if the person was required to register as a sex offender. Previously, California law excluded felony convictions that resulted in a state prison sentence from any type of record relief. Notably, this expansion of petition-based relief applies only to convictions obtained on or after January 1, 2021.

The second bill awaiting the governor’s signature, Senate Bill 1106, expands record relief eligibility by removing a court’s discretion to deny a petition for record relief because of a person’s unpaid victim restitution or unpaid fine. The law adds language saying, “An unpaid order of restitution or restitution fine shall not be grounds for denial of the petition for relief” to sections of the code that allow record relief by petition. The law also adds a section stating that “an unfulfilled order of restitution or a restitution fine shall not be grounds for finding that a defendant did not fully comply with and perform the sentence of the court.” Because automatic relief for convictions requires successful completion of probation or supervision, this section of SB 1106 suggests payment of restitution or restitution fines may not be required to qualify for automatic relief.

Fines and fees are a significant barrier to record relief in many states. For more on this topic, see this report, “The High Cost of a Fresh Start,” by CCRC and the National Consumer Law Center.

In addition to the record relief expansion provisions, SB 731 prohibits the Commission on Teacher Credentialing from considering drug possession convictions when they’re more than five years old and record relief has been granted. The new law also requires the California Department of Justice to provide criminal history information to public and private schools and other contracted entities where background checks are required.