Restoration of Rights & Record Relief
Last updated: March 6, 2023
I. Loss and restoration of civil/firearms rights
The right to vote is suspended while a person is “serving a state or federal prison term for the conviction of a felony.” Cal. Const. art. II, § 4 (amended Nov. 3, 2020, by Prop. 17. Res. Ch. 24, 2020. Effective on fifth day after Secretary of State files final Statement of Vote). In Nov. 2020, California voters amended the state constitution to delete specific reference to parole in art. II, § 4, to restore voting rights to those on parole (Prop 17). See also Cal. Elec. Code § 2101 (2017 amendment making it clear that those serving felony sentences in county jails retain their voting rights). A person whose prison sentence is suspended does not lose the right to vote unless and until actually incarcerated in state or federal prison. Those serving a term of felony parole, probation, “mandatory supervision,” or “post-relief community supervision” may vote. People on on federal supervised release should be regarded as similarly situated.1 In 2016 California restored the vote to all those incarcerated in county jails. Cal. Elec. Code § 2101, amended by 2016 Cal. Legis. Serv. Ch. 757 (A.B. 2466).2 In 2017, § 2105.5 of the Elections Code was amended to require the Department of Correction and Rehabilitation to provide parolees information about voting eligibility upon completion of parole.
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 expand eligibility for petit juries, so that a person may not serve on a petit jury while incarcerated in a prison or jail, while under supervision for conviction of a felony, or who have been “convicted of malfeasance in office and whose civil rights have not been restored.” Service on a grand jury remains prohibited following conviction for “malfeasance in office or any felony or other high crime.” Cal. Penal Code § 893. Persons required to register as sex offenders are permanently disqualified. § 203(a)(11).
The California Constitution disqualifies from public office (broadly defined to include those employed at will by elected officials) anyone convicted of vote- or appointment-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 (five-year bar for public employee); see also Cal. Penal §§ 67, 68, 74, 88, 98 (public office offenses lead to disqualification). 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 for a nonfelony conviction. § 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). GIven that vlimitation, it appears that a California set-aside would not relieve 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. Laws expanding options for record clearing have been enacted in each of the last four years, most recently in 2022 when Governor Newsom signed into law S731 and S1106. Most relief measures available to those with a California record of arrest or conviction are discussed in Roadmap to Reentry compiled and published by Root and Rebound. Individuals uncertain about which type of relief best suits their needs and circumstances should seek advice of a California practitioner familiar with the range of possible routes to relief under state law.
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 or 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. In 2021, § 12017 of the Government Code was amended to require the Governor to “report to the Legislature each reprieve, pardon, and commutation granted, stating the name of the convict, the crime of which the convict was convicted, the sentence, its date, the date of the pardon, reprieve, or commutation, and the reasons for granting the same.” See § 12 of AB 378.
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 a pardon. § 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. A pardon operates to restore firearms rights except where the underlying crime involved use of a dangerous weapon. Cal. Penal §§ 4853, 48548
Several recent governors have used their power aggressively to avoid deportation, even returning individuals to the state after they had been deported. A pardon based on a COR must be recorded on the person’s criminal record and reported to the FBI. § 4852.17. 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. 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 has pardoned regularly since taking office in 2019, although not as extensively as Governor Brown. Most of his grants have been based on a certificate of rehabilitation, and several have gone to non-citizens threatened with deportation. The grants and applications can be seen on the governor’s website at https://www.gov.ca.gov/clemency/, or in 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 governors prior to Jerry Brown 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
For many years, and until very recently, California’s judicial record relief generally took the form of dismissal of charges or set-aside of a guilty plea upon petition to the sentencing court. This relief was limited to less serious convictions, and it did not seal or otherwise limit public access to the record (though it was commonly described as “expungement”). See Part A below. Even after passage of California’s first general sealing law in 2019, AB 1076, this relief was structured around the set-aside system that had been in effect for decades. That is, eligibility for relief under the new automatic process was similar (though not identical) to eligibility under the existing petition-based process described below.
A 2019 law (given retroactive effect in 2020) created a new process of automatic record relief for convictions that were eligible for set-aside and dismissal, as well as automatic relief for many non-conviction records (but generally not for felony arrests). Most provisions of the new automatic sealing law were scheduled to be effective on January 1, 2020, but the date for automating relief was later postponed to 2022.
In 2022, the automatic sealing scheme of the 2019 law was extended by SB 731 to several new categories of conviction where the sentence did not involve a term in state prison. The law also authorized petition-based sealing for most felony offenses (except those requiring sex offense registration) after a conviction-free period of four years after completion of sentence. This law is to take effect in 2023. Another new 2022 law removed some outstanding court debt as a barrier to sealing. See SB 1106. These two new laws are described more fully, along with all of California’s authorities for automatic sealing relief, in Sections A and F, below.
A. Dismissal of charges and set-aside (“expungement”)
Note: Beginning on August 1, 2022, the court record of convictions set aside at any time (under Penal Code sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.425) will be automatically sealed, per the so-called “Clean Slate Act” (AB 1076), described below. In addition, by virtue of this law, the state records repository is presently prohibited from including in responses to requests from the public information about convictions that have been set aside in certain situations. See Section F(3) below.
California’s primary form of relief for convictions is a set-aside and sealing under Cal. Penal Code § 1203.4, known colloquially as an expungement (there are also other set-aside authorities discussed in this profile). Courts have interpreted § 1203.4 as providing for three types of relief: two are mandatory and apply to those sentenced to probation, and the third is discretionary and now applies by virtue of a vast expansion in 2022 to all felony offenses except those requiring sex offense registration:
- A person is entitled to set-aside as of right if the person has “fulfilled the conditions of his probation for the entire period,” which includes, for example, payment of court-ordered restitution during the probationary period, see People v. Chandler, 203 Cal. App. 3d 782 (Cal. App. 2 Dist., 1988), but not, for example, attorney fees and the costs of probation, which “cannot legally be imposed as conditions of probation,” seePeople v. Bradus, 149 Cal. App. 4th 636, 641 (Cal. App. 4 Dist., 2007);
- A person is also entitled to set-aside as of right if they have “been discharged before the termination of the period of probation,” regardless of whether they have paid court debt, see, e.g., People v. Allen, 41 Cal. App. 5th 312, 322 (Cal. App. 4 Dist., 2019); and
- A person may be granted set-aside “in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted” relief. Cal. Penal Code § 1203.4. See, e.g., People v. Bradus, 149 Cal. App. 4th 636, 641 (Cal. App. 4 Dist., 2007). By virtue of SB731, this category now includes all offenses except those requiring sex offense registration. Eligibility waiting periods range from one to four years (the last for a felony offense for which the individual did not conplete probation without revocation).
In summary, by virtue of the 2022 law the only offenses excluded from set-aside and dismissal relief are those requiring sex offense registration. § 1203.41(b), as amended by SB731 (2022). The person must not be serving a sentence, on probation, or charged with any offense. For information on the effect of unpaid court debt, see the next subsubsection.
If relief is granted, 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 set-aside relief has for many years commonly been known as “expungement,” but until recently it did not have the effect of limiting access to the record until 2019. This relief does not entitle the recipient to deny having been convicted, but 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.” But see discussion of “Clean Slate” bill in Section F, below. In addition, a set-aside does not have the effect of restoring firearms rights lost as a result of conviction, which can be accomplished only through a governor’s pardon. See Part I(B), supra. 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).
Effect of set-aside relief is set forth in § 1203.41(b):
(1) In any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if the accusation or information had not been dismissed.(2) The order shall state, and the defendant shall be informed, that the order does not relieve them 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 by a federally recognized tribe, or for contracting with the California State Lottery Commission.(3) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in their custody or control any firearm or prevent their conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.(4) Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.
The progressive extension of set-aside relief since 2011 to almost any felony offense after completion of sentrence is traced in the following discussion:
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 those 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 “wobbler” felony offenses (offenses that can be classified as a felony or misdemeanor) may have their offense reduced to or classified as a misdemeanor and thus may be eligible for one of the forms of relief described above. 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 was 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)).
All felony offenses except those requiring sex offense registration:
In 2022, SB731 extended this relief to any felony offender except those subject to sex offense registration, with varying eligibilityh waiting periods ranging from one to four years.
Proposition 47: Proposition 47 (2014) substantially expanded the number of offenses that were 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, https://ccresourcecenter.org/2014/12/01/californias-proposition-47-collateral-consequences-part-ii-reentry-restoration-rights (Dec. 1, 2014).
Marijuana convictions: Proposition 64 (2016)(“Adult Use of Marijuana Act”) legalized the possession of small amounts of marijuana (less than one ounce) for those 21 years of age and older, reduced criminal penalties for many remaining marijuana offenses, authorized dismissal and sealing for some offenses, and redesignation of others. Relief for marijuana convictions was made automatic in 2018, and in 2022 additional reforms to facilitate delivery of relief were enacted. See more detailed discussion in Section IIIC(2) below.
Formerly incarcerated firefighter: AB 2147 (2020) created a special avenue to relief for people who have served as a state or county incarcerated individual hand crew member and are released from custody. Cal. Penal Code § 1203.4b. If the person “adequately performed their duties without any conduct that warranted removal from the program,” they may petition the court, in the county where they were sentenced, for relief from all sentences they were serving at the time of their hand crew service. Certain offenses are excluded (murder, kidnapping, specified sex offenses, escape, and arson), the person must not be currently facing any charges, and the prosecutor must be given 15 days’ notice of the petition. The court, “in its discretion and in the interest of justice” may set-aside the guilty verdict or allow the person to withdraw the plea, dismiss the charges. This releases the person from “all penalties and disabilities,” except as provided in Section 13555 of the Vehicle Code, with certain conditions: in a subsequent prosecution, the prior conviction is treated as if it was not dismissed. Further, the order does not relieve the defendant of the obligation to disclose the conviction in response to a question in certain licensure applications, does not permit firearm possession, and does not permit the holding of public office if the conviction would prohibit it. Id. To be eligible for this relief, the person is not required to have completed complete probation, parole, or supervised release. The court, in providing this relief, “shall” order early termination of probation, parole, or supervised release if the person has not violated any terms or conditions of supervision. Id.
Loitering to engage in prostitution: AB 257 (2022) repealed Penal Code sections related to loitering with the intent to commit prostitution and authorized a person convicted under the repealed section to petition the trial court for a recall or dismissal of sentence. Upon receiving a petition, the court shall presume the petitioner satisfies the criteria for recall and dismissal of sentence unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria, the court shall grant the petition and dismiss the sentence as legally invalid.
2. Effect of unpaid court debt on eligibility for relief
Until recently, certain court debt (restitution, fees and fines) had to be paid in order to qualify for mandatory relief; however, people with unpaid court debt could still apply for discretionary relief. (The distinction between mandatory and discretionary relief is explained in the preceding section, although this distinction appears to have been eroded with the advent of automatic sealing.) In People v. Allen, the Court of Appeal held that the trial court could deny discretionary expungement, the third type of relief, because of unpaid victim restitution, without violating due process or equal protection, even if the person could not afford to pay the amount. 41 Cal. App. 5th 312, 322 (Cal. App. 4 Dist., 2019).
In People v. Guillen the Court of Appeal held that the granting of relief under § 1203.4 results in the elimination of outstanding court debt that constitute a “penalty or disability,” which includes a “restitution fine.” 218 Cal. App. 4th 975, 1000 (Cal. App. 4 Dist., 2013).
In 2022, SB1106 provided that a petition for expungement “shall not be denied due to an unfulfilled order of restitution or restitution fine,” nor should a request to reduce an offense from a felony to a misdemeanor.
3. Effect of set-aside and dismissal
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 Ninth 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.
4. 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.
See Section II(F) below for scope of automatic sealing of convictions that have been set aside.
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
Proposition 64: Sealing of decriminalized marijuana offenses: Proposition 64 (2016) (“Adult Use of Marijuana Act”) legalized the possession of small amounts of marijuana (less than one ounce) for those 21 years of age and older, and reduced criminal penalties for many remaining marijuana offenses. 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). They were also authorized to petition the trial court to “redesignate” their offense as a misdemeanor or infraction if its level was reduced by Proposition 64. Redesignation is mandatory and no hearing is necessary. § 11361.8(f). 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.) 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
1976 Automatic purging of records of arrest and conviction of marijuana offenses: Proposition 64 supplemented 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 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.”
2018 automation of relief: In 2018, AB 1793 replaced the requirement of individualized filings (which had reportedly resulted in relatively few requests for relief) with an authority for automatic 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 marijuana 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.
2022 reforms: In 2022, AB 1760 amended § 11361.9 to effectuate the relief measures previously enacted in 2016 and 2018 and described above, directing courts to reduce and redesignate sentences; directing the expungement of previously sealed marijuana records and verification of updates to criminal history; and to waive fees for updating records. It also required DOJ/Judicial Council monthly progress reports on accomplishing these measures. “It is the intent of the Legislature that persons who are currently serving a sentence or who proactively petition for a recall or dismissal of sentence, dismissal and sealing, or redesignation pursuant to Section 11361.8 be prioritized for review.”
3. Vacatur and sealing/destruction for victims of human trafficking and victims of domestic violence
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).
It may be assumed that the granting of relief under this statute, as under § 1203.4, results in the elimination of outstanding LFOs that constitute a “penalty or disability,” which includes a “restitution fine.” See People v. Guillen, 218 Cal. App. 4th 975, 1000 (Cal. App. 4 Dist., 2013). However, the law makes clear that “a petitioner shall not be relieved of any financial restitution order that directly benefits the victim of a nonviolent crime. . . “§ 236.14(i). In 2021 the law was amended to provide that the collection of fines “shall be stayed while the petition is pending,” id., and a court “shall not refuse to hear a petition that was properly made pursuant to this section on the basis of the petitioner’s outstanding fines and fees or the petitioner’s failure to meet the conditions of probation.” § 236.14(l).
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.
§ 236.14(k). In 2022 AB 2169 clarified that vacatur relief for offenses committed while the petitioner was a victim of human trafficking, intimate partner violence, or sexual violence demonstrates that the petitioner lacked the requisite intent to commit the offense, and that the conviction is invalid due to legal defect.
Victims of domestic violence. In 2021, a new section was added to the Penal Code giving similar relief to victims of domestic violence:
If a person was arrested for or convicted of any nonviolent offense committed while the person was a victim of intimate partner violence or sexual violence, the person may petition the court for vacatur relief of their 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 intimate partner violence or sexual violence.
§ 236.15(a), added by AB 124.
D. Non-conviction records – sealing
By virtue of a 2021 law, non-conviction records will be sealed automatically back to 1973. Prior to the passage of that act, only arrests or dismissed charged after January 1, 2021 were eligible for automatic relief. See below.
This describes the state of the law prior to passage of the 2021 law. 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 October 2017 Governor Brown signed into law SB-393, repealing the authorities described above and creating broad new authority for courts to seal records upon petition 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 of non-conviction records 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, in which case the person must show that “the sealing would serve the interests of justice” after an adversary hearing. § 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).
Also in 2017, sealing was authorized for drug diversion programs administered by superior court pursuant to Section 1000.5.
If a person charged with a misdemeanor is admitted to a deferred entry of judgment program administered by the district attorney pursuant to Section 1000.1 (“Misdemeanor Diversion”) and successfully completes the program, the judge may order the records pertaining to the arrest to be sealed as described in Section 851.92. See § 851.90.
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).
In 2020, California strengthened requirements for automatic sealing following diversion or supervision, and required automatic sealing of records from police contacts not resulting in a juvenile arrest or charge. See AB 2425 (revising Section 786.5, adding Section 827.95).
These four mechanisms are 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. Automatic relief for convictions and non-convictions (effective 2022 and 2023)
On October 8, 2019, Governor Newsom signed into law AB 1076, authorizing automatic record relief in the form of set-aside and/or sealing of convictions and arrests (originally it covered convictions and arrests occurring on or after January 1, 2021; AB 145 (2021) extended eligibility to convictions and arrests on or after January 1, 1973). SB 118 delayed the implementation of this measure until July 1, 2022. The law supplements but does not supplant the existing system of petition-based relief, and eligibility for automatic set-aside relief under the new law is similar to but not precisely coincident with eligibility under existing law.
The law also for the first time prohibits the state repository, and will prohibit courts effective August 1, 2022 (extended from Feb. 1, 2021 by SB 118), from disclosing information about conviction records that have been or will in the future be granted set-aside relief under the existing petition-based set-aside system (under Penal Code sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.425), except in cases where disclosure is specifically authorized.
The 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 by petition under existing law.
A person arrested on or after January 1, 1973 will be eligible for automatic relief if any of the following is true (prior to the enactment of a 2021 bill, only arrests on or after January 1, 2021 would have been eligible):
- 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.)
Beginning July 1, 2022, 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 August 1, 2022, 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, 1973 will be eligible for automatic relief if either of the following is true (prior to the enactment of a 2021 bill, only convictions on or after January 1, 2021 would have been eligible):
In addition the following conditions must also be 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.)
Beginning July 1, 2022, 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 August 1, 2022, courts “shall not” disclose information concerning the conviction to any person or entity, except to the person granted relief or a criminal justice agency. Cal. Penal Code § 1203.425(c). 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 § 11105(p)(2)(A) that went into effect on January 1, 2020, 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). In addition, beginning on August 1, 2022, courts “shall not” disclose information concerning the conviction to any person or entity, except to the person granted relief or to a criminal justice agency. Cal. Penal Code § 1203.425(c).
When effective, these non-disclosure provisions apply to any convictions granted relief at any time under Penal Code sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.425.
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 felony, or a misdemeanor sex offense, may apply to the Superior Court of his county of residence for a Certificate of Rehabilitation (COR). Cal. Penal §§ 4852.01 through .06, 4852.19. The COR is an order embodying a court’s finding that the defendant is rehabilitated and its recommendation that the defendant be pardoned. § 4852.13; see Section IIA, supra.
In 2022, § 4852.01 was revised to omit a provision that had been interpreted to require a person not sentenced to a prison term to first seek a set-aside pursuant to § 1203.4 before being permitted to file for a certificate of rehabilitation. See SB 1924, amending § 4852.01(a). This same law extended certificate relief to individuals convicted of a felony sex offense and sentenced to probation, if they first sought a set-aside. § 4852.01(b), as amended by SB 1924. The 2022 amendments to § 4852.01(a) omitted the requirement previously held applicable to probationers that they not have “been incarcerated in a prison, jail, detention facility, or other penal institution or agency since the dismissal of the accusatory pleading, is not on probation for the commission of any other felony . . . ” This condition now applies only to sex offenders under § 4852.01(b). The proponents of the law explained the reasons for the change:
Under current law, the process for petitioning for a certificate of rehabilitation is more burdensome for people convicted of less serious offenses (those resulting in sentences of probation) than those resulting in prison sentences. Today, someone convicted of a felony that resulted in a prison sentence may petition for a certificate of rehabilitation following a period  years (or longer for more serious offenses) after the person completes their sentence. Someone convicted of an offense that results in a probation sentence must meet the same  year (or more) waiting period, but must also first secure a PC 1203.4 expungement for the conviction. Crucially, the person must also never become subsequently incarcerated for any amount of time. Any period of incarceration after securing the 1203.4 expungement will permanently foreclose the possibility of a certificate of rehabilitation for the rest of that person’s life.
To obtain a COR, must remain a resident of the state during a “period of rehabilitation” (see below), “live an honest and upright life, shall conduct himself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.” §§ 4852.01, 4852.05. 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. A 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 those 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).
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.
Sex offender registration: Until January 1, 2021, a COR was 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.
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 or private employers from asking an applicant for employment to disclose, from seeking from any source, or from utilizing as a factor in determining any condition of employment, information concerning non-conviction records, participating in a pretrial or posttrial diversion program or concerning a conviction that has been judicially dismissed or set aside or ordered sealed. 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.” In that regard, California courts have held that employers have a duty to investigate the accuracy of a criminal conviction report prior to terminating an employee where there is evidence that the report may be incorrect. Garcia-Brower v. Premier Automotive Imports of CA, LLC, No. A156985, 2020 WL 6074454 (Cal. Ct. App. Oct. 15, 2020) (DMV mistakenly reported a conviction, after which the employee explained that the conviction had been dismissed, but the employer terminated the employee without investigating).
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.
Peace officers and certain persons employed as nonsworn members of a criminal justice agency are excepted from these sections. § 432.7(e). Other specific employments are also excepted in whole or in part.
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.
4. Toolkit for Job Seekers with Records
Legal Aid at Work published a California Fair Chance Toolkit for Job Seekers with Records (Nov. 2020): https://online.fliphtml5.com/jrwkd/rnik/#p=1.
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. See AB 2138. The provisions of AB 2138 are discussed in detail in David Schlussel, California enacts modest occupational licensing reform, CCRC, Nov. 2, 2018, https://ccresourcecenter.org/2018/11/02/california-enacts-modest-occupational-licensing-reform/.
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.
6. Emergency medical services reporting
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.
7. Community care licensure
Operators of community care facilities and the direct care service providers who work there must undergo a background check screening using fingerprint live-scan technology before they can be authorized by the California Department of Social Services (CDSS). Cal. Health & Safety § 1522. If the person has been convicted of any crime other than a traffic infraction, they are disqualified unless CDSS grants an exemption. § 1522(a)(3)(A). The standard exemption process is described at § 1522(g).
AB 1720, enacted in 2022, eases restrictions by allowing CDSS to grant a “simplified criminal record exemption”—an exemption issued on the department’s own motion—if an individual (1) has not been convicted of a violent crime, (2) has not been convicted of any crime in the last five years, (3) has not been convicted of a felony in the last 10 years, (4) has five or fewer misdemeanor convictions, (5) has no more than one felony conviction, and (6) has not been convicted of a crime for which the department is prohibited from granting an exemption.15 § 1522.7. CDSS may require an individual who is otherwise eligible for a simplified exemption to complete the standard exemption process if it decides completing that process will protect the health and safety of a client of a community care facility. A simplified exemption does not relieve the person from compliance with other background check provisions. Id.
In addition, AB 1720 eliminates the requirement for operators and providers to sign a declaration under penalty of perjury that they have never been convicted of a crime in the United States and prohibits CDSS from requiring an applicant for a license to disclose their criminal history information prior to receipt of live scan results.
The provisions of the new law also apply to operators of and providers at residential care facilities for people with chronic, life-threatening illnesses (see § 1568.09), residential care facilities for the elderly (see § 1569.17) and child daycare facilities (see § 1596.871), as well as home health care aides (see § 1796.19 et seq.). See §§ 1522.7(b) & 1796.25(a)(1).
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).
- 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).
- 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.
- § 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 list of crimes for which CDSS may not grant an exemption is posted by the department here: https://www.cdss.ca.gov/Portals/9/CCLD/Old/res/pdf/non_exempt.pdf.
- 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.