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Cleaning the Slate

By Jeff Adachi and DeMarris R. Evans

      "To err is human; to forgive, divine."
      Those words, uttered many times since Alexander Pope first penned them 200 years ago, have vitality and life in today's world, where having a criminal conviction can severely hinder a person from rehabilitation and becoming a working member of society.
      The San Francisco public defender's office's Clean Slate Program offers hope for offenders who are ready to start anew along the path toward being lawful, productive members of the community. Understanding the scope of the program and what it has to offer is critical for lawyers who may be contemplating remedial action for their clients' records, as well as for the bench officers who have the final say in deciding whether the applicants fit the criteria for clemency and leniency.
      By reading this article and taking the accompanying self-study test, lawyers and bench officers will be introduced to the methods available to allow offenders to erase their record of convictions. Readers will learn about expunging criminal convictions, sealing and destroying arrest records, seeking certificates of rehabilitation, having probation terminated early and reducing felonies to misdemeanors.

      Expungement is a way to have a conviction dismissed under Penal Code Section 1203.4. This procedure applies only in cases in which probation was granted. See People v. Borja, 110 Cal.App.3d 378 (1978).
      To be eligible for an expungement, a person must satisfy the following criteria: not on probation or parole at the time the motion is heard by the court; not serving a sentence; and not charged with committing any offenses. Penal Code Section 1203.4(a). Because the definition of "offenses" includes infractions as well as misdemeanors and felonies (Penal Code Section 16), people with pending warrants for even traffic infractions are disqualified for expungement.
      Once the conviction is expunged by having the court enter a dismissal, the person can say legally that he or she has not been convicted of that crime when applying for most forms of employment. The arrest record shows that the conviction has been dismissed under Penal Code Section 1203.4.
      The statute specifies that a person must disclose the expungement in the following circumstances: applications or questionnaires for public office; applications for a license issued by any state or local agency; or contracting with the California State Lottery. Penal Code Section 1203.4(a).
      Also, even after the dismissal, the conviction can be used as a prior to increase punishment in future cases, as well as to bar an ex-felon from owning a gun. Penal Code Section 1203.4(a).
      The following types of cases are ineligible for expungement: infractions, convictions that resulted in a state prison commitment, misdemeanor convictions listed in Vehicle Code Section 42001, violations of Penal Code Sections 286(c), 288, 288a(c), 288.5 and 289(j), and felony convictions under Penal Code Sections 261.5(d). See Penal Code Section 1203.4(b). All other types of cases can be expunged, including felony and misdemeanor convictions.
      The court is required to grant some expungement motions as a matter of law. The ones that are mandatory include any cases in which the person successfully completed the terms of probation. In those cases, the statute provides that the court shall grant the petition for dismissal. Penal Code Section 1203.4(a).
      In other cases, the court has discretion to grant or deny the petition and must make its decision based on the interests of justice. When the motion requires the court to exercise its discretion, providing evidence that the person has been rehabilitated since his or her most recent conviction is a good idea. This evidence can comprise character letters, school transcripts and employment verification.

      Sealing and Destroying Arrest Records
      Penal Code Section 851.8 allows individuals to have records of an arrest or detention completely sealed and destroyed. In order to be eligible to have an arrest record sealed and destroyed, the arrestee must meet the following criteria: the arrest or detention did not result in a conviction (Penal Code Section 851.8(c)); the person is factually innocent of the charges for which he or she was arrested; and if more than two years have expired since the arrest or the filing of the accusatory pleading, whichever is later, the person must show that there was good cause for not requesting to seal the arrest record earlier and that the prosecutor is not prejudiced by the delay. Penal Code Section 851.8(l). "Good cause" in this context can include the person's ignorance and lack of legal representation. See People v. Bermudez, 215 Cal.App.3d 1226 (1989).
      Factual innocence requires a showing that there is no reasonable cause to believe that the petitioner committed the offense for which he or she was arrested. Penal Code Section 851.8(b). To make a determination of factual innocence, the court may review the police department incident report, affidavits of witnesses and any other material and relevant evidence presented at an evidentiary hearing on the motion.
      In cases in which a person was arrested and no accusatory pleading was filed, the person must petition the police or other law enforcement agency and the district attorney's office to seal and destroy the arrest record. If neither agency acts on the petition either within 60 days after the running of the relevant statute of limitation or within 60 days after receipt of the petition, in cases in which the statute of limitations has lapsed, it is deemed denied. Subsequently, the person can petition the court to order the arrest record sealed and destroyed. Penal Code Section 851.8(a).
      In cases in which an accusatory pleading is filed and the case is dismissed, a petition can be made directly to the court at any time following the dismissal without the initial requirement to petition the law enforcement agency and district attorney's office. Penal Code Section 851.8(c).
      The person making the claim has the burden to show that no reasonable cause exists to believe that the person committed the offense. Penal Code Section 851.8(b). This is an objective standard that asks whether a person of ordinary care and prudence would "believe or conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty of the crimes charged." People v. Adair, 29 Cal.4th 895 (2003).
      In addition to finding the person factually innocent, the court may order the arrest record sealed and destroyed in cases in which a dismissal has occurred and the district attorney concurs with the order. Penal Code Section 851.8(d). Further, the judge who presides over a jury trial in which an acquittal occurs may order the arrest record sealed and destroyed if the judge believes that the person is factually innocent of the charge. Penal Code Section 851.8(e).
      Once a record is ordered sealed and destroyed, the law enforcement agency, the district attorney's office, the court and the Department of Justice are all required to seal any records related to the arrest for three years, then destroy all records related to the arrest, including fingerprints, mug shots and rap sheet entries. Penal Code Section 851.8(b). After an arrest record is ordered sealed and destroyed under this section, a person can indicate that he or she has never been arrested for the sealed arrest. Penal Code Section 851.8(f).
      Penal Code Section 851.90 also allows the court to order an arrest record sealed but not destroyed. In order to qualify for relief under Section 851.90, the defendant must meet the following criteria: the person completed a statutory drug diversion or deferred entry of judgment program, and the offense for which diversion or deferred entry of judgment was granted is listed in Penal Code Section 1000. Penal Code Section 851.90(a)(1).
      This section is generally limited to offenses involving substance use or possession and is not available for offenses involving distribution or trafficking. See Penal Code Section 1000(a). Once an arrest record is ordered sealed under Section 851.90, a person can indicate that he or she was never arrested for the sealed arrest, except in an application for a peace officer position. Penal Code Section 851.90(a)(4), (b).

      Certificates of Rehabilitation
      Certificates of rehabilitation are available under Penal Code Section 4852.01, et. seq. (For juveniles, see Penal Code Section 851.7 and Welfare and Institutions Code Section 781.) Certificates of rehabilitation are most effective for convictions that resulted in a state prison sentence, because those convictions cannot be expunged.
      Certificates of rehabilitation are issued by a Superior Court judge on petition. Once a certificate of rehabilitation is granted, it is automatically forwarded to the governor's office as an application for a pardon.
      To qualify for a certificate of rehabilitation, the person must meet the following criteria: seven years have passed since the most recent conviction or since the person was released from custody following a conviction or violation of probation or parole, whichever is later (Penal Code Section 4852.03(a)(3)), and the person has lived in California for at least three years (Penal Code Section 4852.03(a)(1)). Petitions must be filed in the county where the person lives even though the conviction may have occurred in a different county. Penal Code Section 4852.06.
      Although a certificate of rehabilitation does not result in the dismissal of a conviction, it can enhance an individual's chances of obtaining employment, licenses, housing and other opportunities, because it is an official record that a court has found the person has been rehabilitated. Penal Code Section 4852.17. Also, the granting of a certificate of rehabilitation is a recommendation by the Superior Court judge that the person be pardoned. Penal Code Section 4852.16.
      Cases ineligible for certificate of rehabilitation are those involving any misdemeanor offenses (except those specified in Penal Code Section 290.5, which have been dismissed under Penal Code Section 1203.4), offenses under Penal Code Sections 286(c), 288, 288a(c), 288.5 or 289(j) and individuals serving a mandatory life parole or committed to prison under a death sentence or people in the military. Penal Code Section 4852.01(d).

      Early Termination of Probation
      An early termination of probation is available under Penal Code Section 1203.3. One case had held that, "under Section 1203.3 a trial court enjoys continuing authority to modify the terms and conditions of probation, even over the People's objection and notwithstanding any plea agreement." However, the California Supreme Court has granted review. See People v. Segura, 144 Cal.App.4th 200, review granted Feb. 14, 2007, S148536. Whether a court has power to terminate probation early in this situation is thus unclear.
      Section 1203.3(a) provides, "The court shall have authority at any time during the term of probation to ... change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held."
      Generally, the person making the motion must have a good reason for the early termination. A job offer that depends on getting a clear criminal record check is an example of a good reason to terminate probation early.
      Additionally, the motion must be filed to enforce a plea bargain that included an agreement for an early termination, once specific terms were completed.

      Reduction of Conviction From Felony to Misdemeanor
      Under Penal Code Section 17(b), a conviction can be reduced from a felony to a misdemeanor. This statute provides that "a reduction of a felony to a misdemeanor applies to any judgment imposing punishment other than imprisonment in state prison."
      Once a reduction is granted, certain rights are restored, including the right to own or possess a weapon. In addition, the immigration consequences of a felony conviction are removed once the offense is reduced to a misdemeanor because the reduced felony is considered " a misdemeanor for all purposes." Penal Code Section 17(b).
      Nonetheless, the Court of Appeal has held that, even after a reduction to a misdemeanor, an offense can be used as a felony "strike" to increase punishment in future convictions. People v. Franklin, 57 Cal.App.4th 68 (1997).
      Only "wobblers" may be reduced to misdemeanors. To determine whether an offense is a wobbler, the punishment statute for the particular offense must be consulted. If the punishment statute indicates that the punishment can be either state prison or county jail, then the offense is a wobbler.
      If the punishment statute indicates a sentence of state prison without a county-jail option, then the offense is not a wobbler and is not reducible to a misdemeanor. Penal Code Section 17(b). A court has no power to reduce a nonwobbler to a misdemeanor. People v. Douglas, 79 Cal.App.4th 810 (2000).

      Getting a clean slate is critical to reintegration into society for ex-offenders. Many employers are required to conduct criminal-record background checks that disqualify people because of records that often date back 10 or 20 years.
      In order for all people to have the opportunity to obtain employment, professional licenses, certifications, housing and other opportunities, practitioners and bench officers must be familiar with the available relief so that no one is precluded from taking advantage of opportunities for which they are otherwise qualified.
      The San Francisco public defender's office is one of the few defender offices that provides a dedicated expungement unit. In recognition of its service, the San Francisco public defender's "Clean Slate Program" recently received the San Francisco Mayor's Managerial Excellence Team Award, as well as the California Public Defenders Association's Program of the Year Award.

      Jeff Adachi is the public defender and DeMarris R. Evans is a deputy public defender in San Francisco.

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