Reducing the Consequences of an Arrest or Conviction

After a person has been charged with or convicted of a crime, the full spectrum of relief consists of a lot more than just an appeal. For example, many people convicted of crimes in California are eligible for a record clearance. People on probation may be eligible for both early termination of probation and a record clearance. If a person was arrested but never convicted, the arrest records may be sealed. People convicted of a felony may be eligible to have their conviction reduced to a misdemeanor. Some people convicted of crimes that carry sex-offender registration can ask a court to terminate the registration requirement. For others, a pardon can be requested of the Governor.

Record Clearances (Expungement) [Penal Code § 1203.4 et. seq.]

A record clearance may allow a person to truthfully state that they were not arrested or convicted of a crime. An expungement order reopens a case and permits a person to withdraw a plea of no contest or guilty, or to vacate a verdict of guilty. The court then orders the case dismissed. For most purposes, such as employment applications, the record clearance allows people to truthfully state that they were not convicted of the offense. This relief can be very valuable for job applications and other situations where a criminal record may be problematic. California has recently expanded the availability of this kind of relief, making it available to people who were convicted of misdemeanors or felonies, put on probation, sentenced to jail, or sentenced to prison. Penal Code §§ 1203.4a, 1203.4, 1203.41, 1203.42. 

Relief under these statutes does not eliminate all consequences of the conviction. The court records and public databases will still show the case and the former conviction, but they will also show that the conviction has been vacated and the case has been dismissed. The record clearance does not affect the ability to possess a firearm or restore any firearm rights. Nor does it eliminate the conviction for purposes of applying for a professional license, answering a questionnaire for public office, or for contracting with the California State Lottery.

People who complete probation can apply for a record clearance as soon as they finish probation. People sentenced to jail or prison can apply after their release from custody plus a waiting period of one or two years. A record clearance is available for most convictions but there are some exceptions. Attorneys at Nolan Barton Olmos & Luciano have extensive experience with petitioning the court for record clearances and can handle these matters expeditiously.

Petitions to Seal Arrest, Juvenile & Related Records
[Penal Code § 851.91 & Welfare and Institutions Code § 781]

In California, an arrest or detention—even if it did not lead to a conviction—will leave a trail of law-enforcement and court records. Sometimes, just answering a question about a prior arrest can create a barrier for the person. A petition to seal an arrest record under Penal Code § 851.91 allows a person to truthfully state that they were not arrested for most purposes. When a court grants a petition to seal arrest records, the court will seal the court records and order the arresting agency to do the same. The documents will no longer be accessible in the public record, and may not be disclosed except under special circumstances. Attorneys at Nolan Barton Olmos & Luciano have extensive experience with these petitions.

Many juvenile records can also be sealed. Welfare and Institutions Code section 781 allows for most juvenile convictions—except those for the most serious crimes—to be sealed. Attorneys at Nolan Barton Olmos & Luciano have extensive experience with filing petitions to seal these records as well.

Motions for Early Termination of Probation
[Penal Code § 1203.3]

California law allows people who are on probation to file a motion asking the court for an early release from probation. Courts will typically consider these motions after a person has substantially complied with the terms of probation for a sufficient period of time, or when the person is suffering some unusual consequence of being on probation. Penal Code § 1203.3 is the law that lets people ask to have probation terminated early. Courts that grant these motions will also typically grant a record clearance (described above) if one was requested. Attorneys at Nolan Barton Olmos & Luciano have extensive experience in asking courts to terminate probation early. 

Petitions for Factual Innocence
[Penal Code § 851.8]

People who are factually innocent of a crime may petition the court to have their arrest records and court records sealed and destroyed under Penal Code § 851.8. The process to prove factual innocence is elaborate, and typically arises when there was no reason for someone to have ever been arrested or charged with a crime (misidentification of a suspect, arrest based on being in the wrong place at the wrong time, and things like that). Upon the grant of a factual innocence motion, the court will order law enforcement agencies and courts to seal all records of the event for three years and then destroy all records. Attorneys at Nolan Barton Olmos & Luciano have extensive experience with applying for petitions for factual innocence.

Motions to Reduce Certain Felonies to Misdemeanors & to Reduce Certain Misdemeanors to Infractions [Penal Code §§ 17(b) and 17(d)]

In California, some offenses can be charged as either a felony or a misdemeanor (this is commonly called a “wobbler” offense). People charged with or convicted of a felony wobbler may ask the court to reduce their felony to a misdemeanor. This process involves filing a motion that explains how the interests of justice are best served by reducing the felony to a misdemeanor. If the court grants the motion, the felony is treated as a misdemeanor for almost all purposes. 

Many felony offenses can be reduced to misdemeanors after sentencing, after the completion of probation, or even years later. Some felony drug offenses became misdemeanors under Proposition 47 in November 2014, and individuals are now entitled to petition the court to reclassify those felonies as misdemeanors. Proposition 64, passed in 2016, also permits many individuals with felony convictions for marijuana cultivation, transportation, sales, and possession for sale to have their offenses reduced to misdemeanors.

Likewise, certain misdemeanors may be charged as either a misdemeanor or an infraction (this is commonly called a “wobblette” offense). An infraction is the least serious type of offense under California law. People may petition the court to reduce a wobblette offense to an infraction.

Attorneys at Nolan Barton Olmos & Luciano have extensive experience with this process and with writing and filing successful motions to grant this type of relief.

Certificates of Rehabilitation
[Penal Code § 4852.01]

A certificate of rehabilitation is an order from the court declaring that a person has been rehabilitated. The certificate also acts as a pardon application to the Governor under Penal Code section 4852.01 et. seq. People convicted of most felonies can apply for a certificate, as well as people convicted of misdemeanors that require sex-offender registration. It may also help a person apply for better job opportunities, enhance their potential for licensing consideration by a state board, or prevent some employers from considering the conviction in the hiring process. Only residents of California can apply for certificates of rehabilitation, and there are various waiting periods that depend on the person’s specific conviction (people who are not eligible for a certificate can apply for a traditional pardon, as discussed below).  Attorneys at Nolan Barton Olmos & Luciano have experience filing petitions for certificates of rehabilitation.

Traditional Pardon Applications
[Penal Code § 4800 et. seq.]

If an individual obtains a certificate of rehabilitation, a recommendation for pardon and application for pardon are automatically sent to the Governor. But even if a person is ineligible for a certificate of rehabilitation, they can still apply directly to the Governor for a pardon. A pardon sometimes restores firearm rights and can allow someone convicted of a felony to work as a county probation officer or a state parole agent. Attorneys at Nolan Barton Olmos & Luciano have experience preparing pardon applications. 

Terminating Sex-Offender Registration
[Penal Code § 290.5]

Starting in July 2021, California radically changed the procedure for seeking termination from the sex-offender registry.  Many people on the registry can now apply directly to a court to terminate the registration requirement after waiting a specified period of time.  Depending on the type of crime, the waiting period is either 10 or 20 years.  Some people, however, are still required to register for life.  You can find additional information about terminating the duty to register here.