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Petitions for factual innocence
By Stuart M. Rice and Carly Nese

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A petition under Pen C Section 851.8 is worth exploring when no conviction results from an arrest and the petitioner can set forth the necessary facts for the court to make a finding of factual innocence.

The objective of this article is to review the rules that allow defendants to have arrest records sealed and destroyed under Pen C Section 851.8. Readers will learn who is eligible to have their arrest records sealed and destroyed, who is eligible to have a conviction expunged, what must be included in a petition, and the implications of an expunged record.

Overview of Pen C Section 851.8

Penal Code Section 851.8 sets forth the guidelines for individuals to have records of an arrest completely sealed and destroyed.

In pertinent part, Pen C Section 851.8(c) provides: "In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made."

The specified classes of individuals that may petition the court for a finding of factual innocence and the sealing and subsequent destruction of arrest records include (1) persons who have been arrested but against whom no accusatory pleading has been filed (Pen C Section 851.8(a)); (2) persons who have been arrested and against whom an accusatory pleading has been filed but no conviction has occurred (Pen C Section 851.8(c)); and (3) persons who are acquitted of a charge when it appears to the judge presiding at trial that the defendant was factually innocent (Pen C Section 851.85).

The purpose of Pen C Section 851.8 is "for the benefit of those defendants who have not committed a crime" in that "it permits those petitioners who can show that the state should never have subjected them to the compulsion of the criminal law - because no objective factors justified official action - to purge the official records of any reference to such action." People v. Adair, 29 Cal. 4th 895 (2003); People v. Scott M., 167 Cal. App. 3d 688 (1985).

To be eligible to have an arrest record sealed and destroyed, the person must meet the following criteria: (1) the arrest did not result in a conviction (Pen C Section 851.8(c)); (2) the person is factually innocent of the charges for which he or she was arrested (Pen C Section 851.8 (b)); and (3) 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 (Pen C Section 851.8(l)).

Establishing Factual Innocence

Under Pen C Section 851.8, the petitioner must show that he or she is factually innocent of the charges for which he or she was arrested. Under Adair, "Establishing factual innocence ... entails establishing as a prima facie matter not necessarily just that the [defendant] had a viable substantive defense to the crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place."

In any court hearing to determine the factual innocence of a party, the initial burden of proof rests with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. Pen C Section 851.8(b). As explained by Adair, reasonable cause is an objective standard that asks whether a person of ordinary care and prudence would "believe or conscientiously entertain an honest and strong suspicion that the person arrested [or acquitted] is guilty of the crimes charged."

As Adair stated, "'[F]actually innocent' as used in [section 851.8(b)] does not mean a lack of proof of guilt beyond a reasonable doubt or even by 'a preponderance of evidence.' Defendants must show that the state should never have subjected them to the compulsion of the criminal law - because no objective factors justified official action ... . In sum, the record must exonerate, not merely raise a substantial question as to guilt." (Citations omitted).

Adair further stated, "[M]uch more than a failure of the prosecution to convict is required in order to justify the sealing and destruction of records under section 851.8. 'Establishing factual innocence ... entails establishing as a prima facie matter not necessarily just that the [defendant] had a viable substantive defense to the crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place.' A trial court's finding of factual innocence based solely on its own interpretation of the evidence does not sustain the defendant's burden any more than a failure of the prosecution to convict." (Citations omitted).

The mere fact that a case was dismissed in furtherance of justice under Pen C Section 1385 will not ordinarily mean that factual innocence has been established. As discussed by People v. Glimps, 92 Cal. App. 3d 315 (1979), for example, Pen C Section 1385 dismissals that are not due to factual innocence include dismissals "(1) of some of multiple counts 'to effectuate plea bargains arranged between the People and the defense and approved by the court'; (2) 'to enable the prosecution "to obtain further witnesses, to add additional defendants, to plead new facts, or to plead new offenses ... ."'; (3) to avoid harassment by a retrial of a defendant who has already served an appropriate period of incarceration awaiting trial, 'notwithstanding the fact that there is sufficient evidence of guilt ... .'; (4) where vital evidence of defendant's guilt is required to be excluded; [and] (5) where 'the only possible result of a conviction ... would be a concurrent sentence' [that] would cause such a nominal increase in penalty [that] no purpose other than to harass defendant would be served. Consequently, a dismissal pursuant to [section 1385] 'in furtherance of justice' is totally noncommittal with respect to the issue of innocence. In recognition of this, Penal Code section 1387 expressly provides that in felony cases, such a dismissal does not bar further prosecution unless repeated and even then, further prosecution may be allowed based upon discovery of substantial new evidence." (Citations omitted).

If the court finds that a showing of no reasonable cause has been made by the petitioner, the burden of proof shifts to the respondent to show that reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made. People v. Matthews, 7 Cal. App. 4th 1052 (1992). As explained by Adair, Pen C Section 851.8 precludes the trial court from granting the petition unless the court finds that no reasonable cause exists to believe the defendant committed the offense charged. 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.

When an accusatory pleading has been filed and subsequently dismissed, the court may make a finding of factual innocence and order the arrest record sealed and destroyed with the concurrence of the prosecuting attorney. Pen C 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. Pen C Section 851.8(e).

Two-year statute of limitations/good cause

A petition for the sealing and destruction of an arrest record must be brought within the two-year statute of limitations, which begins to run from the date of the arrest or filing of the accusatory pleading, whichever comes later. But a petition may be brought after the statue has expired if good cause can be shown for not requesting to seal the arrest record earlier and the prosecutor is not prejudiced by the delay. Pen C 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).

Under Bermudez, a showing that the defendant was trying to work things out informally with the prosecution might suffice as good cause. However, when no explanation is provided for delay beyond two years, the petition must be denied.

Procedure

When a person was arrested and no accusatory pleading was filed, the person must first petition the police or other law enforcement agency with a copy to the prosecutor's office to seal and destroy the arrest record. Pen C Section 851.8(a). 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. Pen C Section 851.8(b). Subsequently, the person can petition the court to order the arrest record sealed and destroyed. Pen C 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. Pen C Section 851.8(c). However, 10 days' notice must be provided to the prosecutor's office, who may present evidence at the hearing. Pen C Section 851.8(c).

On appeal, the reviewing court must review the trial court's determination of factual innocence by applying an independent review standard. Adair, 29 Cal. 4th at 907. The arresting agency is not a party to the court proceedings on the petition and thus has no standing to appeal an order granting the petition. Instead, an appeal can only be brought by the parties, either the defendant or the People. People v. Punzalan, 112 Cal. App. 4th 1307 (2003).

Effect of sealing and destroying records under Pen C Section 851.8

Once a record is ordered sealed and destroyed, the law enforcement agency, the prosecutor'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. Pen C 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. Pen C Section 851.8(f).

Conclusion

Although relief under Pen C Section 851.8 is difficult to obtain, it is a powerful tool for individuals to pursue in the appropriate case.

But even when a Pen C Section 851.8 finding is out of reach, other options exist to expunge records. For example, Pen C Sections 1203.4 and 1203.4a provide an expungement remedy without requiring a showing of factual innocence. Although the relief afforded by these sections is far less than that conferred by Pen C Section 851.8, it is available even when the case resulted in a conviction.

Stuart M. Rice is a judge in the Los Angeles County Superior Court.

Carly Nese is an associate in the labor and employment law firm of Liebert Cassidy Whitmore where she represents public agencies across the state.

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