California Pardons & Certificates of Rehabilitation
Penal code 4852
Information on the law concerning pardons and certificates of rehabilitation is found at California penal code section 4852.
Persons who have been convicted of a misdemeanor or felony crime may apply for a pardon from the governor of California. A governor's pardon is also known as a gubernatorial pardon.
Pardon may be conditional or full and unconditional. A conditional pardon is a pardon that is granted with conditions or limits a sentence. If the conditions are met the pardon is granted or if the sentence is limited. This is mostly found in death setence cases where the sentence of death is commuted but the balance of the sentence remains in effect. A full and unconditional pardon has no conditions.
A pardon is an honor that may be granted to persons who demonstrate exemplary behavior following their criminal conviction. In practice, very few pardons are granted.
The first step in most petititions for a pardon is to obtain a Certificate of Rehabilitation from the Superior Court in the county where the petitioner currently lives. If the certificate of rehabiliation is granted an application for pardon will automatically be filed with the Secretary of State for consideration by the governor. Some sex crimes are not eligible for a certificate of rehabilitation, and therefore, the petitioner must apply directly to the governor for a pardon. Crimes that do not qualify for a certificate of rehabilitation are listed below.
The grant of a full and unconditional pardon from the governor is a complete restoration of civil rights under California law. Benefits include:
- A release from the duty to register as a sex offender (PC 290.5)
- A restoration of the right to own and possess firearms for non-dangerous weapon convictions (PC 4852.17)
- A restoration of the right to vote and serve on a jury (PC 4852.17)
- A restoration of the privilege to work as a parole or probation officer, but not as a police officer (GC 1029(c))
A pardon is not a sealing and erasure of a criminal record. If a pardon is granted by the governor the petitioner may still have his or her criminal record used against him in subsequent criminal proceedings. Also, if a pardon is granted the petitioner is not entitled to misrepresent to prospective employers that he or she has no criminal record. Finally, a pardon will not necessarily protect an immigrant from negative consequences of criminal convictions as immigration law and procedure is within the exclusive jurisdiction of federal law, not California law.
Crimes that qualify from relief of the duty to register as a sex offender after a grant of a full and unconditional pardon:
- PC 269: Aggravated Sexual Assault of Minor
- PC 286(c): Sodomy by Force
- PC 288: Lewd & Lascivious Acts Upon Minors
- PC 288a(c): Oral Copulation by Force
- PC 288.5: Continuous Sexual Abuse of a Child
- PC 289(j): Sexual Penetration of Minor under 14
- PC 311.2, 311.2, & 311.3: Child Pornography
- PC 261.5(d) Felony Sexual Conduct w/Minor
- PC 288.7: Felony Sexual Conduct w/minor
The application process for pardons
A direct pardon requires using the forms provided by the Secretary of State. Notice requirements are strict. The drafting of declarations and production of records evidencing a productive and law-abiding life should be included. The use of a criminal defense attorney in the application processed is highly recommended.
A non-direct pardon is automatically filed by the clerk of the Superior Court following the granting of a certificate of rehabilitation. If the court grants the certificate of rehabilitation the petitioner does not need to do anything further in order for the governor to consider the petitioner for a grant of pardon.
Certificate of Rehabilitation
A certificate of rehabilitation is a court order declaring the petitioner is rehabiliated. There are several requirements that must first be met before a judge will grant the petitioner's petition for certificate of rehabilitation:
1) Residency requirement: Petitioner must reside in California for at least three years prior to the filing of the petition for a certificate of rehabilitation (PC 4852.01(a)). Most sex crimes require a residency period of five years (PC 4852.01(c))
2) Expungement requirement: Petitioner must have his or her criminal conviction expunged pursuant to penal code 1203.4.
3) Period of rehabilitation requirement: Petitioner must meet a minimum rehabilitation period. The period of rehabilitation is seven years for most crimes except as provided below:
- The period of rehabilitation is nine years in the case of any person convicted of violating penal code sections 187, 209, 219, 4500, or 18755...or any life sentence (PC 4852.03(1)).
- The period of rehabilitation is ten years in the case of any person convicted of committing any offense or attempted offense for which sex offender registration is required pursuant to penal code section 290, except for convictions for violations of PC 311.2(b), 311.2(c), 311.2(d), 311.3, 311.10, or 314. For those convictions, the period of rehabilitation is seven years.
The period of rehabilitation begins to run when the petitioner is released from custody or released from parole or probation, whichever is sooner.
Benefits of a receiving a certificate of rehabilitation
In addition to the personal pride and sense of accomplishment that follows a declaration from a judge that the petitioner is rehabilitated, a certificate of rehabilitation has many benefits, including:
- Relieving the petitioner from the requirement to register as a sex offender for some sex offenses (PC 290.5 See list below)
- Allow the petitioner to be considered by licensing boards, bars, and commissions for potential professional licensing considerations
- A non-direct and automatic application for a pardon (which comes with a full restoration of the petitioner's rights)
A certificate of rehabilitation will not seal or erase a criminal history. Also, a criminal conviction that is the subject of a certificate of rehabilitation may still be considered in subsequent prosecutions in criminal court. In addition, a petitioner who has his or her criminal history cleared through a certificate of rehabilitation may not misrepresent his or her criminal history upon application for a professional or occuapational license. Finally, a certificate of rehabilitation will not restore the petitioner's right to own and possess firearms.
Relief from the requirement to register as sex offender
Most, but not all, sex offense convictions come with a requirement to register as a sex offender pursuant to PC 290.
If a criminal conviction for a sex crime is granted a full and unconditional pardon by the grovernor the defendant will be relieved of the duty to register as a sex offender. As stated, the grant of a full and unconditional pardon is very unusual. However, a petitioner who has been granted a certificate of rehabilitation may also be relieved from the duty to register as a sex offender in some cases. The following crimes qualify for relief from the duty to register as a sex offender after the granting of a certificate of rehabilitation:
- Misdemeanor sexual battery: Penal codes 243.4(a), 234.4(b), 243.4(c), 243.4(d), and 243.4(e)(1)
- Rape by misrepresentation: Penal code 261(a)(5)
- Rape by threat to arrest or deport: Penal code 261(a)(7)
- Misdemeanor seduction of a minor for prostitution: Penal code 266
- Misdemeanor induce sexual act by false pretenses: Penal code 266c
- Misdemeanor sodomy: Penal codes 286(b)(1), 286(f), and 286(e)
- Misdemeanor oral copulation: Penal codes 288a(b)(1), 288a(h), and 288a(e)
- Misdemeanor sexual penetration: Penal code 289(c)
- Misdemeanor child molestation: Penal codes 647.6(a)(1), 647.6(a)(2), 647.6(b), 647.6(c)(1), and 647.6(c)(2)
- Indecent exposure: Penal codes 314(1), and 314(2)
- Pimping: Penal codes 266h(b)(1), and 266h(b)(2)
- Pandering: Penal codes 266i(b)(1), and 266i(b)(2)
- Solicitation to commit a sex act by force: Penal code 653f(c)
- Spousal Rape: Penal code 262(a)(1)
- Human Trafficking: Penal codes 236.1(b), 236.1(c)(1), and 236.1(c)(2)
- Distribute lewd material to a minor: Penal codes 288.2(a)(1), and 288.2(a)(2)
- Attempt to contact a minor to commit a lewd act: Penal codes 288.3(a), 288.4(a)(1), 288.4(a)(2), and 288.4(b)
- Child pornography: Penal codes 311.1(a), 311.2(b), 311.2(c), 311.2(d), 311.2(d), 311.3, 311.4(a), 311.4(b), 311.4(c), 311.10(a), 311.11(a), 311.11(b), 311.11(c)(1), and PC 311.11(c)(2)
- Or any case in which the defendant was required to register as a sex offender pursuant to PC 290.006 as opposed to PC 290, because the court found the crime was committed by sexual compulsion or sexual gratification.
The process for obtaining a certificate of rehabilitation
The process for obtaining a certificate of rehabilitation starts with a petition to the Superior Court in the county where the petitioner lives. Strict procedures and notice requirements must be followed. Declarations and evidence which supports the petitioner's assertion that he or she is truly rehabilitated must accompany the petition. It is highly recommended that the petitioner retain the services of a criminal defense lawyer to help prepare the petition.
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Please see left side of this page for a complete list of qualifying sex crimes under PC 290.5, which qualify for relief from the duty to register as a sex offender upon the granting of a certificate of rehabilitation
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