How To Apply For A Certificate Of Rehabilitation & Pardon To Expunge Your Record In California

Certificate of Rehabilitation

When a term in state prison has been served, there are two ways to obtain relief:

  1. Certificate of Rehabilitation and Pardon, and
  2. Direct Application for Pardon.

Certificates of Rehabilitation are first sought from the trial court. If a certificate issues, the trial court recommends that the governor grant a pardon. The governor has discretion to grant or deny a pardon.

In order to obtain a Certificate of Rehabilitation, the applicant must have been a California resident for at least three years before filing the petition. There is a period of rehabilitation that is required before filing, but the amount of time varies, depending on the underlying criminal conviction.

Dismissal of the underlying charges pursuant to Penal Code Section 1203.4 is not required before seeking a Certificate of Rehabilitation, so long as the person served a prison sentence. If probation was imposed instead of a prison sentence, dismissal must first be obtained, and the defendant must be free from felony probation.

A Certificate of Rehabilitation is a court order that declares a person who has been convicted of a felony is rehabilitated. If a petition for a Certificate of Rehabilitation is granted, it is forwarded to the Governor by the granting court and constitutes an application for a pardon.

The laws pertaining to the Certificate of Rehabilitation are in California Penal Code sections 4852.01 to 4852.21.

Sex Offenses

Someone who has been convicted in California of a felony or of a misdemeanor sex offense may apply to the superior court in his or her county of residence for a Certificate of Rehabilitation, if accusatory pleading of which has been dismissed pursuant to Penal Code section 1203.4, as specified in California Penal Code section 290 (California Penal Code section 4852.06).

Individuals convicted of Penal Code sections: 286(c), 288, 288a(c), 288.5, and 289(j), however, are prohibited from obtaining a Certificate of Rehabilitation.

A Certificate of Rehabilitation relieves some offenders from the sexual offender registration requirement of Penal Code section 290. California Penal Code section 290.5 sets forth a list of persons not eligible for relief from registration. To determine your 290 registration status, contact the Law Offices of Douglas Slain.

Pardon

A full pardon restores all of the rights and privileges of which the person was deprived, with some exceptions. For instance, a pardon does not automatically restore any license, permit, or certificate that had been taken as the result of the conviction.

A Governor’s pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony, or in some cases, for certain specified misdemeanor sex offenses.

Pardon applications are not considered unless an applicant has been discharged from probation or parole for at least ten years and has not engaged in further criminal activity.

The receipt of a Certificate of Rehabilitation will be considered in evaluating a pardon application, but it is not the sole determinant, and the ten-year rule may be waived in truly exceptional circumstances.

Once the threshold criteria has been met, the application will be reviewed to determine whether the applicant has met the standards set forth in California Penal Code section 4852.05, which states: “During the period of rehabilitation, the person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.”.

Certificate of Rehabilitation & Pardon

Who may apply?

Persons who are eligible include those who:

  • Were convicted of a felony and served the sentence in a California state prison; and
  • Were discharged on completion of the term or released on parole prior to May 13, 1943; and
  • Have not been incarcerated in a state penal institution since release; and
  • Present satisfactory evidence of three years residence in California immediately prior to the filing of the petition.

or

  • Were convicted of a felony, or a misdemeanor sex offense specified in Penal Code section 290, the accusatory pleading of which was dismissed pursuant to Penal Code section 1203.4; and
  • Have been discharged or released from custody on probation; and
  • Have not been incarcerated in any penal institution, jail or agency since the dismissal of the accusatory pleading; and
  • Are not on probation for the commission of any other felony; and
  • Present satisfactory evidence of five years residence in California immediately prior to the filing of the petition.

or

  • Were convicted of a felony on or after May 13, 1943; and
  • Were sentenced to state prison or other institution or agency; and
  • Were discharged from custody or released on parole; and
  • Present satisfactory evidence of five years residence in California immediately prior to the filing of the petition.

Persons who are INELIGIBLE to apply for a Certificate of Rehabilitation include:

  • Those who do not meet the above requirements; or
  • Those who were convicted only of misdemeanors (except those convicted of a misdemeanor sex offense specified in Penal Code section 290, which was dismissed pursuant to Penal Code section 1203.4); or
  • Those who were convicted of Penal Code sections 286(c), 288, 288a(c), 288.5, or 289(j); or
  • Those who are serving a mandatory life parole; or
  • Those committed to prison under a death sentence; or
  • Those persons in the military service.

When to apply?

Persons may file the petition once the period of rehabilitation has passed. The period of rehabilitation begins to run upon the discharge of the petitioner from incarceration due to the completion of the term, or upon release on probation or parole.

The period of rehabilitation constitutes five years residence in California, PLUS:

  • Four years in the case of persons convicted of violation of California Penal Code sections 187, 209, 219, 4500, or 12310, or Military and Veterans Code section 1672(a), or of committing any other offense which carries a life sentence; or
  • Five years in the case of any person convicted of any offense or attempted offense for which sex offender registration is required pursuant to P.C. 290, except for convictions for violations of subdivision (b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or 314. For those convictions, two years shall be added to the five years imposed by this section.
  • Two years in the case of any persons convicted of any offense not listed above and which does not carry a life sentence; or
  • The number of additional years ordered by the trial court hearing the application for the Certificate of Rehabilitation in the case of a person serving consecutive sentences.

Rescission of Certificate of Rehabilitation

A district attorney in either the county of conviction or the county of residence may petition the superior court to rescind a certificate, if it was granted for any offense specified in California Penal Code section 290.

Procedures for Applying

The petition must be filed in the superior court of the petitioner’s current county of residence. (California Penal Code section 4852.06.) The petitioner is required to provide notice of filing to the DA in their county of residence, as well as each county in which the petitioner was convicted of a felony, and to the Governor’s office.

All felony convictions, or misdemeanor sex offenses specified in Penal Code section 290, as dismissed under Penal Code sec. 1203.4, should be included. This notice must be sent to the district attorneys at least 30 days before the hearing.

Each person who is eligible to initiate the Certificate of Rehabilitation proceedings is entitled to receive assistance in processing the petition from all rehabilitative agencies, including adult probation officers of the county and state parole agents.  In the case of persons under 30, help can be obtained from the Youth Authority. During the court proceedings, the petitioner may be represented by private counsel of his choosing.

Once a petition is filed, the court may require an investigation by the district attorney of the county of residence of any and all matters pertaining to the petitioner.

At the hearing, the court may require testimony and the production of records and reports pertaining to the petitioner, including information about the conviction offense, and conduct both while incarcerated and since release.

If, after the hearing, the court finds that the petitioner has demonstrated rehabilitation, a certified copy of the Certificate of Rehabilitation is then transmitted to the Governor and becomes an application for a pardon.

The Governor’s office may request a further investigation. Following a review, the Governor may then grant the pardon. If the petitioner has been convicted of more than one felony in separate proceedings, approval must be sought from the state Supreme Court.

Direct Pardon Application

A direct pardon is typically sought by those who are not eligible for a Certificate of Rehabilitation, such as misdemeanants, or by nonresidents.

Any person who has been convicted in California of a felony, or a misdemeanor sex offense specified in Penal Code sec. 290 (the accusatory pleading of which has been dismissed pursuant to Penal Code sec. 1203.4) may apply to the Governor for a pardon.

Applications for pardons may be made in two ways: either an application for a Certificate of Rehabilitation, or through a direct traditional pardon application. The procedure utilized will depend on the circumstances, and it is important to consult with a lawyer to determine which is appropriate.

The Governor has complete discretion in deciding whether to grant a pardon. A pardon is not granted to every person who applies.

Pardon investigations are conducted for the Governor by the California Board of Prison Terms, Investigations Division.

The traditional pardon procedure is used primarily by California ex-felons who reside out-of-state and are therefore unable to satisfy the residency requirement. The traditional pardon procedure is also available to those individuals who have convictions for Penal Code sections 286(c), 288, 288a(c), 288.5, and 289(j). The traditional pardon procedure is covered by California Penal Code sections 4800-4813.

Applicants for a traditional pardon must write directly to the Governor’s Office. A pardon applicant should retain an experienced lawyer to ensure that all of the procedural requirements are met.

The letter should include the following:

  • Why a pardon is needed;
  • Date and circumstances of all offenses of which the applicant was convicted;
  • Dates the applicant served in prison and on probation or parole;
  • Name of the applicant, including any aliases; date of conviction; county and case number of conviction, prison numbers; names of parole agent; current address and telephone number; and
  • A general statement of employment and activities since release from custody.

Upon receipt of the letter, the Governor’s staff will review the information and may send the Application for Executive Clemency and Notice of Intention to Apply for Executive Clemency forms to the applicant.

The applicant should complete the Application for Executive Clemency form and have it notarized. In addition, the Notice of Intention to Apply for Executive Clemency should be served on the District Attorney of each county in which the applicant was convicted of a felony, at least ten days prior to the application.

The Acknowledgment of Receipt portion of the notice form must be completed and signed by the District Attorney. Both the application and the completed notice must then be submitted to the Governor’s Office, along with a full statement of any compensation paid to any person for assisting in the procurement of a pardon.

The Governor will normally refer the application for investigation. After investigation, the applicant is notified of when the Board will be considering his or her case, and he or she is given the opportunity to forward any additional information.

Pardon applicants do not attend the pardon consideration meeting. Following the meeting, the application, investigation report, and the Board’s recommendation are sent to the Governor.

The Governor then reviews all of the information and decides whether to grant a pardon. There is no requirement that the Governor issue a pardon to an applicant, and the length of time needed for the completion of the pardon process cannot be predicted.

Effect of Granting of Certificate or Pardon

When a Certificate of Rehabilitation or pardon is granted, it is is also filed with the Secretary of State and becomes a matter of public record.

Restoration of Rights

The most frequent reason to ask for your rights to be restored is for personal satisfaction, for licensing or bonding purposes, and to restore firearms privileges. Another reason is to enhance employment opportunities.

A pardon does not seal or expunge the record of the conviction. (California Penal Code section 4852.17.) Prior convictions may be considered after the granting of a pardon, if the person is subsequently convicted of a new offense.

An ex-felon becomes eligible to vote after being terminated from probation or discharged from parole. (California Constitution, article 11, section 4.) A pardon is not necessary to be eligible to vote.

A person who receives a pardon may serve on a trial jury.(California Code of Civil Procedure section 203(a)(5) and California Penal Code section 4852.17.)

An ex-felon who receives a full and unconditional pardon can be considered for an appointment to a peace officer position as a county probation officer or state parole agent, but cannot hold other peace officer positions. (California Government Code section 1029.)

If you have not obtained a pardon restoring your firearms rights, and you have access to a firearm of any type, you are in violation of the law. For example, having a firearm registered to a spouse, but readily available to you in your place of residence, is a violation.

A California pardon does not apply to convictions suffered in another jurisdiction. A person convicted in another state or in a federal court must apply for a pardon to the other state or the federal government.

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