Certificates of Rehabilitation in California

A certificate of rehabilitation is a court order that declares your rehabilitation to the world. It also automatically recommends you to the governor for a pardon. If you’re not eligible for an expungement, you can still clean up your record through a certificate of rehabilitation. Or you may want to apply for one even though you’ve already expunged your conviction.

Like an expungement, a certificate of rehabilitation will bring better job prospects and a better chance at getting a professional license. Unlike an expungement, it won’t allow you to say that you have no conviction.

But also, unlike an expungement, a certificate of rehabilitation can relieve you from having to register as a sex offender. The court will deny it, however, if it finds you’re a continuing threat to minors. Or the district attorney’s office can petition to rescind it on that ground.

To qualify, you must show that you live “an honest and upright life” and have demonstrated rehabilitation for a number of years after you were released from custody or put on probation or parole. You can’t still be under supervision, and the number of years depends on the nature of your conviction. In a nutshell, it’s nine years if you were convicted of a serious violent crime; ten years if you were convicted of most sex offenses that require sex-offender registration; and seven years for anything else. You also must prove that you’ve lived in California for at least five years before you filed your petition.

Who’s ineligible? Well, you’re not eligible if you don’t meet the above criteria. But you’re also ineligible if you were convicted of a serious sex offense involving a minor. If that’s the case, you can still ask the governor directly for a pardon, but you’ll need to show extraordinary circumstances to get it. Finally, you’re not eligible for a certificate of rehabilitation if you were convicted of a misdemeanor, unless it was a sex offense that required registration.

How do you do it? You can find more information from the governor’s office here, and you can pull the appropriate forms from your local courthouse, public defender, or probation department. The court may even appoint counsel to represent you. Or, if you can afford it, retain counsel to make the best case for you.

Expunging Criminal Records in California

It ain’t just for kids, after all. Anyone who’s eligible can petition to expunge a criminal conviction in California. Here’s what you need to know.

Like we explained last week, the term “expungement” is a misnomer because it doesn’t erase the conviction or wipe the slate clean. But that’s still how lawyers and judges will refer to it. Technically, it’s called a dismissal under Penal Code section 1203.4 or other such section. So you’re still going to have a rap sheet, in other words.

But it will add a line item to your rap sheet that shows the case was dismissed. If you had pleaded guilty before, the court will permit you to withdraw your plea. If you were convicted at trial, the court will set aside that verdict. Either way, the court will then dismiss the case.

In most situations, that means you can legally and truthfully say that you don’t have a conviction. That can help on a job application, for example, though the rule is different for public employers like law-enforcement agencies. In all situations, you can at least say that the conviction was dismissed, because it was.

Most employers aren’t even supposed to ask about convictions that have been dismissed, and they’re not supposed to rely on them in their decision-making. The exceptions include public employers like law-enforcement agencies.

Most licensing boards, on the other hand, can ask about them, and you should answer by disclosing both the conviction and the dismissal. They’re not supposed to deny a license basely solely on a conviction that has been expunged or dismissed.

You’re eligible to expunge a felony or misdemeanor if you were sentenced to probation or the county jail. If you successfully completed probation or had it terminated early then you are entitled to the dismissal. If you didn’t then you can still win if you can persuade the court of your rehabilitation. If you went to county jail on a felony then you’re eligible one or two years after the end of your sentence; it depends on whether you served a split sentence that included post-release supervision (one year) or a full sentence in jail (two years). Or, if you didn’t get probation on a misdemeanor then you’re eligible if it’s been over a year since you were sentenced, and you’ve completed that sentence and otherwise done well.

You’re not eligible if you were sentenced to state prison, unless you would go to county jail for the same offense today or the court suspended the execution of your prison sentence and put you on probation instead. You’re also not eligible for certain sex offenses involving minors, including child pornography or statutory rape if you were 21 or older and the minor was younger than sixteen.

So how do you do it? Here’s a guide from the official website of the California courts that can help you do it yourself. But you should check your own county’s rules and forms, too. Here’s the link for Orange County, for example. Or, if you can afford it, get a lawyer. He or she will navigate the process for you and help you put your best foot forward. Plus, you may not ever have to go to court yourself.

Expunging Juvenile Records in California

If you spent time in juvie, and you don’t qualify to seal your records, you can still petition to expunge your case.

If the court grants your petition, it will set aside the finding of guilt, dismiss the case, and release you from all penalties resulting from it. That’s what the statute says, anyway.

In reality, an expungement doesn’t erase the past or wipe the slate clean. It won’t seal your records and destroy them. It can’t spare you from registering as a sex offender. And if you pick up another case, the prior can be used against you as a strike or other enhancement.

But it’s still worth it because it reflects your rehabilitation and efforts toward it. Your rap sheet will no longer show a conviction as the last line item for the case. Instead, it will show the case as being dismissed. In most situations, you can legally answer that you don’t have a conviction at all. In all situations, you can at least say that the conviction was dismissed, because it was. That can improve your odds of getting that job, loan, housing, or license.

So it gives you a fresh start.

Sealing Juvenile Records in California

In the case we wrote about last week, a California court held that it wasn’t cruel and unusual punishment to require a minor to register as a sex offender for life.

The court noted, however, that a kid could be relieved of this requirement if he got his juvenile records sealed.

So how do you get your juvenile records sealed? Here are the basics in California.

If you are put on some form of probation or supervision, and you complete it satisfactorily, your records should be sealed automatically. That’s new under a law that went into effect in 2015. You can find more information about it here.

Otherwise, you have to petition the court to seal your records. To do that, you must be at least 18 years old or it must be at least five years since the end of your juvenile case. You can’t have a civil lawsuit pending against you because of the case, and you can’t have any adult criminal convictions except for certain misdemeanors. You must apply through the court’s probation department, and you can check this website to see whom to contact in your county. The court may hold a hearing, and it will grant your petition if it finds that you’ve been rehabilitated. That can happen even if you still owe fines, fees, or restitution. If the court denies your petition, you can try again later.

Generally, you’re not eligible at all if you committed an especially serious or violent offense when you were at least 14 years old. You can read more about that here and here.

But you may have a shot if you can persuade the court to dismiss your case based on a special motion that looks at your rehabilitation, your well-being, and the interests of justice. You may bring this motion no matter how long it’s been since your juvenile case ended, so talk to your lawyer. If you win the dismissal then you can petition to seal your records.

Once the court seals your records, your case no longer exists as a public record, and the proceedings are deemed never to have occurred. That means you can legally and truthfully say that you don’t have a juvenile record. Generally, the underlying records aren’t destroyed until you turn 38 years old, and they won’t ever be destroyed in the serious or violent cases. But they may be looked at only in limited situations, such as if you apply to work in the military, law enforcement, or the federal government.

 

The Restoration of Rights Project

Have you ever been arrested? Do you have a prior conviction?

Do you wonder whether you can clean up your record and how that affects you, if at all?

Start here. It’s called the Restoration of Rights Project, and it looks at the law in every state for restoring your rights and status after an arrest or conviction. It covers federal law, too.

For each state, the Project compiles answers to these questions:

  1. Whether and how you can seal, expunge, or dismiss your arrest or conviction.
  2. Whether and how you can restore your civil rights, like the right to vote.
  3. Whether and how your state’s laws affect your chance of landing a job or license, losing one, or getting it back.
  4. Whether your state has a regular process to apply for a pardon and how often it grants one.
  5. Whether and how you can stop having to register as a sex offender.

It’s a great resource not just for lawyers and the courts but for, in its words, “the millions of Americans with a criminal record who are seeking to put their past behind them.”

Judge Not, Lest We Be Judged

If you’re still not sold on the power of redemption, I may not be able to sway you.

But consider this guy. He committed a carjacking at 16 and spent eight years in prison for it. Today, at 35, he has a wife, two bouncy sons, and now, a law degree from Yale. He just graduated last month. I guess it’s good we didn’t throw away the key.

His story reminded me of three quotes I saw recently. They each spoke to why we should treat people humanely in our justice system. I saw them in the email signature of a defense lawyer in Texas, and while he and I have never met, I think they say something positive about him, too. If you need a lawyer in his neck of the woods, look him up.

I especially liked how the quotes were attributed to three very different people. An itinerant lawyer and activist. An influential computer scientist. An acclaimed writer and novelist.

Three different walks of life, but they seemed to agree on some things.

  1. Freedom is not worth having if it doesn’t include the freedom to make mistakes.”
  2. “Good judgment comes from experience, and experience comes from bad judgment.”
  3. “Sometimes you make choices in life and sometimes the choices make you.”

Great quotes, all. You live and breathe long enough, you know them to be true.

A Model Penal Code for the 21st Century

Charging decisions, which we wrote about last week, matter for many reasons. They drive plea bargains, and they affect sentencing. You file a felony, for example, so that the guy will plead to a misdemeanor without giving you much trouble. It happens all the time.

Bad charging decisions, though, don’t just cause wrongful convictions or unjust sentences.

They cause other consequences that continue to torment you after you’ve served your sentence. Your actual sentence may include your jail or prison time, the fines you must pay, or the terms of probation you must follow. You did the crime so you should do the time and pay the fine, right? Okay, but then even after you do, you still may not be able to cast a vote, land a job, rent a home, hold a license, or get a loan. These are the so-called collateral consequences of a conviction.

But the future may be brighter.

Last week, the American Law Institute approved major changes to the Model Penal Code to address these consequences. The ALI is the leading scholarly body that aims to clarify, modernize, and otherwise improve American law. The Model Penal Code is its seminal work in the area of criminal law. It doesn’t have the force of law by itself, but it’s influential. Most states have used it in passing their own laws, and courts cite to it often.

The new provisions would require you to prove, by clear and convincing evidence, that a collateral consequence of your conviction imposes a heavy burden on your ability to rejoin society and that public safety doesn’t need you to suffer it.

If you do that then a court could relieve you from that burden. A court could even issue a certificate of rehabilitation that shields employers, landlords, or others who give you a second chance from civil liability.

Already, state legislatures have been proposing and passing laws to give people a fair shake to prove themselves before dismissing them based on the past.

Hopefully, that momentum keeps building. We should consider what it means to have a record, anyway, when most people either have one, know someone close to them who does, or would have one but for the grace of God. And we should consider how we judge people altogether in a world in which our every action can leave a permanent trace.

The twenty-first century may demand it.

The Lowdown on California’s Proposition 57

Last week it was Proposition 64; this week, it’s Prop 57.

Voters approved it by a wide margin, but what does it do?

Two things.

First, it amended the California Constitution to ensure parole eligibility for people who have been convicted of a nonviolent felony, once they have served the full term for their primary offense. In layman’s terms, that means that you’re eligible for parole once you’ve served the meat and potatoes of your sentence, even if you were sentenced to additional, consecutive time on lesser counts or for sentencing enhancements. But this just means you’re eligible; it doesn’t mean you get released. It just means you’ve got a shot at parole, and something to work toward. No one is automatically released, and no one is entitled to parole.

Second, Prop 57 mandates that a judge must always decide whether a minor age 14 or older should be prosecuted and sentenced in adult court. (Kids 13 and younger don’t go to adult court.) Before, you automatically went to adult court, even at 14, if you were charged with murder or an aggravated sex crime. Or the prosecutor could file your case directly in adult court if you were 16 or 17 and charged with a serious or violent felony or you were 14 or 15 and charged with an especially serious or violent felony. In all cases, the prosecutor could request the juvenile court to transfer your case to adult court, even for a misdemeanor.

Under Prop 57, there’s no direct filing of juvenile cases in adult court, and prosecutors have less discretion to request their transfer. For ages 14 or 15, they may request a transfer only if the kid is charged with a serious or violent felony. For ages 16 or 17, it can be any felony but not a misdemeanor.

Some things haven’t changed, like the criteria for deciding whether a minor’s case should be transferred to adult court. These include the following:

  • the nature and seriousness of the charges
  • the degree of criminal sophistication he displayed, given his age, maturity, intelligence, environment, and upbringing
  • his prior history of delinquency, if any
  • whether he can be rehabilitated by the time he comes of age or close to it

Reduce Your California Felony Conviction to a Misdemeanor

Can you do that? Yes, you can. Look up Penal Code Section 17(b) if you don’t believe us. You can also reduce certain felonies to misdemeanors under Proposition 47, and we wrote about that previously here.

Under Section 17(b), you can even reduce your felony to a misdemeanor long after you’ve served out your sentence. If you haven’t considered it, you should. If you’re currently facing felony charges then you can try reducing them at your preliminary hearing or at sentencing, but you should talk to your lawyer about that.

Once you reduce your felony to a misdemeanor, it’s considered a misdemeanor from that point on (with some exceptions). Then you can legally and truthfully say that you have not been convicted of a felony when you go about your business or apply for loans, housing, employment, or professional licenses or credentials (again, with exceptions). One big exception? It won’t relieve you from having to register as a sex offender.

To be eligible, you must meet two criteria. First, your felony must have been a wobbler, meaning it could’ve been charged as a felony or misdemeanor. If you were convicted of a straight felony then you’re out of luck. Second, the court must have put you on probation but without actually imposing a felony sentence. This is important, too. It’s not enough if the court imposed a sentence but suspended its execution in favor of probation; it must not have imposed a felony sentence at all. So if you were sentenced on the felony then you’re out of luck even if the court suspended its execution and put you on probation.

Bottom line: You are eligible if you were convicted of a felony that could’ve been charged as a misdemeanor and the court put you on probation without imposing a felony sentence.

How will a court decide your motion? By analyzing the same factors that guide other sentencing decisions. These include the facts of the case; the nature of the offense; your personal history and characteristics; and how well you did or have done on probation.

 

If Prison Walls Could Talk

Here’s an interesting story about a just-released report on prison reform, with a kick: it’s written by the prisoners.

The authors are five inmates, all first-time offenders, who have spent a combined 95 years in the Texas prison system.

They write from their own experiences and those of others, but many of their observations apply across the country. They write about food, medicine, discipline, parole, programming, solitary confinement, and other things. And they write well.

Here are six examples to give you a flavor. Even if we don’t adopt every suggestion, doesn’t it make sense to listen?

The intake process. It ought to help steer people toward reform and rehabilitation, but it doesn’t. Instead, it degrades them and strips them of their dignity. Sometimes, new arrivals are greeted with words like, “Welcome to hell,” and then treated accordingly. Staff may yell obscenities in their ear throughout the process, among other things. This routine demands submission but discourages rehabilitation. It isn’t necessary and doesn’t comport with the state’s mission statement.

The commissary. Stock it appropriately to reduce the black market for goods that inmates otherwise steal from the kitchen or laundry at taxpayers’ expense. Stock it with healthier foods, including fruits and vegetables, and inmates will eat them. Don’t worry about their making wine out of the fruit because they’re making the wine, anyway. “[They] make wine without fruit by using fruit juice, mint sticks, raisins stolen from the kitchen, and other black-market items procured in prison. Trying to eliminate the exceptional activities of a few by prohibiting healthy items for all serves no purpose. The wine is still being made!”

Computers and technology. Expand inmates’ access to it. You can monitor and regulate their use, but keeping them from it only impedes their successful reentry into society. “When an inmate is released, they should be familiar with the technology they are expected to interact with on a daily basis.”

Visitation. Expand visiting hours and improve the experience. Don’t make it more difficult or unpleasant for people. Nurture the bonds that inmates have with their loved ones. Don’t fleece them with surcharges on phone calls and emails.

Differences among staff. Bad officers create hostile work environments for other officers and foster bad behavior among the inmates. Good officers try to treat inmates with respect and make the prison safer for staff and inmates alike. They view inmates as people who are worthy of respect and who will one day rejoin society.

Reward good behavior. Don’t just punish bad behavior. “Giving inmates the ability to set themselves apart … would give an inmate a reason to care about his future; it would give him hope that his future can be different; and giving inmates hope about a better future will change the culture of the prison system.”

 

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