Sun. Jun 9th, 2024

What does it mean to be factually innocent of a crime?

Being factually innocent of a crime simply means that you did not commit the crime. The term is used in several contexts. Generally, it means that there are facts that show that you did not commit, or could not have committed, the crime you were accused of committing.

Some states, such as California, allow defendants to prove their factual innocence to seal their arrest records.

What does factual innocence mean?

Broadly speaking, factual innocence means that you are innocent of the crime that you have been accused of committing. You can prove your factual innocence by showing either that you:

  • did not commit the crime, or
  • could not have committed the crime.

You can prove this:

  • before you have been charged for the offense,
  • after you have been charged but before trial,
  • during the trial,
  • on appeal, or
  • in a later court hearing.

For example: Daniel has been convicted of rape. He appeals his conviction but it gets affirmed. Years later he works with a new criminal defense lawyer who gets the case reopened. At the hearing, they show that Daniel’s DNA does not match the DNA found on the victim. This means that Daniel did not commit the crime.

For example: Bernadette returns home from a vacation in Japan to find that her car has been stolen. Then police arrive and arrest her for driving under the influence (DUI). She shows her plane tickets, credit card statement, and other evidence that shows that she was in Tokyo when whoever was driving her car got pulled over for drunk driving. This helps Bernadette prove that she could not have committed the offense.

However, in some states, factual innocence can be the term for a court process in which you have the opportunity to prove that you did not commit the crime you were charged with committing.

Am I factually innocent if I was not convicted?

Not necessarily. Factual innocence means that you did not actually commit the crime. People who are not factually innocent can avoid a conviction, often by:

  • raising a reasonable doubt of their guilt in a jury trial and securing an acquittal,
  • pleading guilty in order to make use of a diversion program that, if completed, will dismiss their case without a conviction, or
  • showing that law enforcement violated one of their civil rights.

Many of these people will have actually committed the crime. However, they will not be convicted for it. Because they committed the offense, they are not factually innocent.

Additionally, people who are factually innocent can be wrongfully convicted. The criminal justice system can wrongfully convict these innocent people in a variety of ways:

  • a suspect being held on bail can choose to plead guilty to a crime that they did not commit in order to be let go,
  • a defendant can plead guilty to a lesser criminal offense that they did not commit in order to avoid a trial for a more severe offense, or
  • the jury at a criminal trial can be persuaded by the prosecutor’s case, even though it is not what happened.

Even though these people were factually innocent, they can still end up being convicted. Wrongful convictions like these happen all the time.

How can I file a petition for factual innocence motion in California?

A very limited number of states have a court process that gives defendants the opportunity to prove their own factual innocence. California is one of them. California Penal Code section 851.8 PC lets people who were not convicted file a petition for a certificate of factual innocenceYou would then have the burden of proof to show that you were factually innocent in the criminal case. If you can successfully show that you were not guilty, law enforcement agencies have to seal and then destroy records of your arrest.

You can seek a certificate of factual innocence if:

  • you were detained by police but were never arrested,
  • you were arrested but were never charged,
  • you faced criminal charges but they were later dismissed, or
  • you were charged and tried for the offense but were never convicted.

All of these circumstances will leave you with a criminal record, often an arrest record. This criminal background is publicly available. If someone else finds it, they can discriminate against you or take important opportunities away from you.

Filing a petition for factual innocence and then proving your case can get the records sealed.

You can file a petition for factual innocence with the law enforcement agency that had jurisdiction over the case. You have 2 years from the date of the arrest to file it. The petition has to show that you were arrested or detained without reasonable cause. You can do this by providing exculpatory things like:

  • witness testimony or affidavits,
  • police reports,
  • crime scene photos,
  • surveillance video,
  • DNA evidence, and
  • cell phone records.

If you present evidence that suggests that there was no reasonable cause for the arrest or detention, the burden of proof shifts. The district attorney representing the police department is then given the opportunity to rebut your claim with evidence that there was reasonable cause. The judge will then issue an opinion.1

If the judge decides that there was no reasonable cause for the arrest or detention, law enforcement agencies, including the U.S. Department of Justice, have to seal the records of the arrest from the public eye for 3 years. After this time, the records and the petition get destroyed.2 This includes all:

  • arrest reports,
  • mugshots,
  • court records,
  • evidence collected in the case, and
  • booking information.

What are the benefits of filing it?

A finding of factual innocence will lead to your arrest records getting sealed and destroyed. This takes them out of the public eye, similar to the process of expungement. Once sealed, the arrest records will not be discovered in a background check. These checks are frequently conducted by private parties and companies whenever you:

  • apply for a job,
  • apply for a professional license,
  • request a mortgage loan from a bank,
  • apply for an apartment, or
  • submit an application to a school or college.

If the background check reveals an arrest record, the application is more likely to be denied, even if it was just for a misdemeanor. Even if the application does get accepted, it may have additional terms or conditions or limitations on it.

Filing a petition for factual innocence gives you the opportunity to avoid the negative consequences of having a criminal background.

Clean Slate Laws

Note that as of July 1, 2023, most arrest and conviction records will be cleared automatically (a process called “automatic relief”) pursuant to Clean Slate laws:

  • Misdemeanor arrests should be sealed after 1 year if there are no criminal charges, and felony arrests should be sealed after 3 years if there are no criminal charges.
  • Cases that get dismissed will be cleared immediately.
  • Convictions of cases where you are granted probation should be cleared when the case closes.
  • Otherwise, misdemeanors convictions get cleared 1 year after the case ends, while felony convictions get cleared 4 years after the case ends. (This does not apply to serious, violent, or sex offender felonies.)

Legal References:

  1. California Penal Code 851.8 PC.
  2. Same.
  3. SB-731AB-1076
  4. source

Penal Code § 851.8 PC – Certificate of Factual Innocence Motion to Destroy Arrest Records

Under Penal Code § 851.8 PC, a petition for a certificate of factual innocence is where you ask the court to make a finding that you did not commit a crime for which you were detained, arrested or charged, although never convicted in court.

Specifically, you can seek a petition for factual innocence where you:

  1. have been detained by police officers, but not officially arrested for a crime,
  2. have been arrested for an offense, but not formally charged,
  3. were formally charged for a crime, but the charges were later dismissed, or
  4. were formally charged for a crime and tried for that crime, but there was no criminal conviction.

You have the burden to show you are factually innocent of the crime. If the petition is granted, the police agencies must seal and destroy all records of the arrest.

 

1. What is a petition for factual innocence in California?

Factual innocence” legally means that you are innocent of any criminal act, whether felony or misdemeanor. You file a petition for factual innocence (PFFI) in order to destroy arrest records because the arrest should not have occurred in the first place.

A successful petition for a finding of factual innocence shows that there was no reasonable cause to believe you committed an offense for which you were arrested.

California Penal Code 851.8 PC sets forth the procedures for filing the petition. If a petition is granted, the law enforcement agency having jurisdiction over the offense must seal your arrest records for three years (from the date of the arrest).After this time, the criminal records and the petition get destroyed.2


Note that with the implementation of Senate Bill 731 & Assembly Bill 1076 – The Clean Slate Act, California is automatically clearing:

  • misdemeanor arrests records if there are no criminal charges after 1 year, and
  • felony arrests records if there are no criminal charges after after 3 years.

This process is called “automatic relief.”


2. How do I prove factual innocence?

After an arrest has been made, you file a PFFI with the law enforcement agency having jurisdiction over the offense.3

In the petition, you must prove that your arrest was made without legal cause.4 You can present evidence to attempt to prove factual innocence. Examples of such evidence include:

  1. witness testimony,
  2. photos,
  3. surveillance video,
  4. receipts,
  5. cell phone records, and
  6. DNA.

In order to prove factual innocence, you have the initial burden of proof to show that there was no reasonable cause for an arrest. Then it is then up to a prosecutor to show that there was, in fact, reasonable cause for the arrest.

Upon hearing from both sides, a judge then determines:

  1. whether or not the arrest was warranted, and
  2. if your factual innocence motion should be granted.5

Please note that you must file a petition for factual innocence within two years from the date of the arrest. In short, there is a two-year statute of limitations to bring the petition.

If a judge is convinced that there was no reasonable cause for your arrest, then the judge will grant the PFFI.


How to Seal & Destroy Arrest Records in California

to learn more on that specific topic click here How to Seal and Destroy Arrest Records and Case Records


3. What happens if I’m found to be factually innocent?

If a judge is convinced that there was no reasonable cause for your arrest, then the judge will grant the PFFI.

Once this occurs, the police department and the Department of Justice must seal and destroy all records of your arrest. This includes any subsequent criminal proceedings.6

Moreover, the above entities must also destroy the following (that are associated with the arrest):

  • arrest reports,
  • booking information,
  • mugshots,
  • court records, and
  • any evidence collected or gathered.

4. When am I eligible to apply under Penal Code 851.8?

Under California law, you can file a PFFI post-arrest. But there are actually four distinct scenarios under which you can file a petition. These are when you:

  1. have been detained by an arresting agency, but not officially arrested by police for a crime,
  2. have been arrested for an offense, but not formally charged,
  3. were formally charged with a crime, but the prosecuting attorneys dropped the charge, and,
  4. were formally charged with a crime and tried for that crime, but there was no criminal conviction.

5. What are the benefits?

The reality is that arrest records can make it difficult for you to accomplish basic life goals. Thus, a petition for factual innocence removes barriers to these goals.

A background check these days may now be run for any of the following:

  • a job application,
  • a professional license,
  • a request for a mortgage loan,
  • an apartment application, or
  • a school application.

If this background check shows a past arrest, the applications or loans could get denied.

An arrest record could cause further complications as well. For example, if you are arrested for violating one of California’s domestic violence laws, then you could lose your gun rights. A PFFI is helpful in making sure these rights are protected.

“Sealing” an arrest means the record will not show up on most criminal background checks in California.

6. What does it mean to seal an arrest record?

Penal Code 851.87 is the California statute that pertains to the sealing arrest records as a matter of right.

Sealing” an arrest means the record will not show up on most criminal background checks.

Under PC 851.87, you can have your arrest record sealed as a matter of right when:

  1. criminal charges were filed but later dismissed,
  2. you were found “not guilty” (acquitted) in a jury trial,
  3. your conviction was vacated or overturned on appeal, or
  4. you successfully completed a pretrial diversion or pre-sentencing program, such as Penal Code 1000 deferred entry of judgment.7

An exception to sealing an arrest record as a matter of right is when you have a history of arrests and/or convictions for:

  • domestic violence,
  • child abuse, and/or
  • elder abuse.8

It typically took about ninety days after filing a petition to seal to get a court order to seal an arrest record in California. Though as of July 1, 2023, most arrest and conviction records will be sealed automatically pursuant to Clean Slate laws:

  • Misdemeanor arrests should be sealed after 1 year if there are no criminal charges, and felony arrests should be sealed after 3 years if there are no criminal charges.
  • Cases that get dismissed will be sealed immediately.
  • Convictions of cases where you are granted probation should be sealed when the case closes.
  • Otherwise, misdemeanors convictions get sealed 1 year after the case ends, while felony convictions get sealed 4 years after the case ends. (This does not apply to serious, violent, or sex offender felonies.)

Arrest records, police reports, and superior court records that are sealed under this section shall not be disclosed to any person or entity except:

  • you (the person whose arrest was sealed), or
  • a criminal justice agency (which may use the information to the same extent as if the arrest had not been sealed).9

Improper release of a sealed arrest can be punished by a civil penalty of between $500 and $2,500 per violation. The penalty may be enforced by a city attorney, district attorney, or the Attorney General.

You may also have the right to bring a lawsuit for compensatory damages or possibly even punitive damages (if the release was reckless or intentional).

 

 

Legal References:

  1. California Penal Code 851.8 PC. PC 851.8(a). See, for example, People v. Mazumder (Cal. App. 4th Dist. Apr. 24, 2019)People v. Bedrossian (Cal. App. 1st Dist. Feb. 27, 2018)People v. Forest (Cal. App. 1st Dist. Oct. 25, 2017).
  2. See same.
  3. See same.
  4. See same.
  5. See same.
  6. See same.
  7. California Penal Code section 851.87 PC.
  8. See same.
  9. Penal Code 851.92(b)(2)(B)(6) PC. SB-731AB 1076.
  10. source

Factual Innocence Motions

In California, there are a number of options available to individuals who are trying to clean up their criminal records. While many convictions can be expunged under California Penal Code Section 1203.4 PC, there is always a record of the arrest that may be available to law enforcement and other parties accessing the individual’s complete rap sheet.

There are instances where a defendant was arrested for a crime but was never convicted. This may be because charges were ultimately declined for criminal filing by a prosecutorial agency, because the charges were filed but dismissed or because the defendant went to trial and was acquitted. In these cases, the defendant can file what is known as a factual innocence motion under California Penal Code Section 851.8 PC. If successful, the defendant’s record will be sealed and destroyed. Unlike the relief available with an expungement, a person whose California Penal Code Section 851.8 PC motion is granted will have no indication that they were arrested and/or prosecuted for the underlying offense on their criminal record.

In many cases, a person may be arrested for a crime but the charge is ultimately dismissed or never filed. In these cases, the arrest may still remain on a person’s criminal record and may even show up as an unresolved case. Employers may discovery this during a background search and the existence of this arrest record could prove toxic to a person’s job prospects.

Although the burden is extremely high, the defendant may be able to delete the arrest record by filing a factual innocence motion. The first step would be to petition the law enforcement agency who made the arrest and request that they issue a finding of factual innocence and destroy the petitioner’s arrest record. This must be done within two years of the date of arrest. Once the petition has been filed with the relevant law enforcement agency, the agency has 60 days to respond. If 60 days passes or if the law enforcement agency denies the petition, the petitioner can then file a petition in Superior Court for a finding of factual innocence. The petition would be filed with the Superior Court branch that would have had jurisdiction over the original offense. In addition, both the law enforcement agency who conducted the arrest and the prosecutorial agency that would have been responsible for prosecuting the case would have to be served with the petition.

A hearing will be set to determine whether or not the petitioner is factually innocent of the underlying criminal offense. During the hearing, the petitioner can be represented by an attorney and can provide declarations, affidavits, witness testimony and any other evidence tending to show that the petitioner is factually innocent of the criminal conduct. Unlike criminal court where the burden of proof is on the prosecution, the initial burden of proof in a factual innocent motion is on the petitioner. He or she would be required to prove that there is no reasonable cause to believe that the petitioner committed the crime that he or she was arrested for. If the petitioner is able to meet this burden, the prosecutor would have to establish that there was reasonable cause to show that the petitioner committed the offense. The prosecution can also present evidence, including police reports and officer testimony, in order to rebut the petitioner’s arguments. After hearing all evidence, the Court would render a decision and would ultimately grant or deny the petition for factual innocence.

If the motion is granted, the arrest record will be sealed for a period of three years. During this time, the arrest could not be disclosed to any potential employer. After three years have passed, any record of the arrest would have to be destroyed. If asked on a job application whether or not the petitioner has ever been arrested, the petitioner can legally answer that he or she has not been arrested if the factual innocence motion was granted. source

 

 

 

 


Sealing Your Arrest Record: PC 851.8 vs. PC 851.91

Let’s say you are arrested 10 years ago, but are never convicted of that crime. For example, you are charged with simple battery, a violation of Penal Code 242, but the District Attorney never filed the case/filed a complaint against you, and eventually dismissed the case against you. That is great, but you still have an arrest on your record. So, when you apply for a job, the arrest pops up on your background check. Can you get rid of this arrest on your record, as in, can you seal your record? And, how do you do that?

Petition for Factual Innocence (PC 851.8) or Petition to Seal Records (PC 851.91)

Here are two options: You can file a Petition for Factual Innocence (PC 851.8) or you can file a Petition to Seal your records (PC 851.91).

For a Petition for Factual Innocence, you have the burden of proof of showing that there is no reasonable cause for your arrest. In other words, the police has no reason to arrest you in the first place because you are innocent. This can be a hard one to prove. In the simple battery example used above, the elements for a simple battery are 1) you touch someone, 2) willfully, and 3) in a harmful or offensive manner. So, as long as someone was offended when you touched them, the police could technically have reasonable cause to arrest you for battery.

Now, unless the wrong person was arrested or there are facts not articulated in the arrest report that can be litigated now to change the whole circumstance of the case, a Petition for Factual Innocence could be an uphill battle. DNA, alibi, phone records, witness testimony, affidavits, journals, etc. may be used to prove once’s innocence at a hearing for a Petition for Factual Innocence. And, once you show there is no reasonable cause for your arrest, the burden then shifts to the prosecuting agency to show that there was reasonable cause. The judge will make the final call.

Now, for a Petition to Seal one’s records, all one has to show is that one was arrested, but never convicted. Or, one may have been arrested, or later have been acquitted, or their charges were reversed or vacated on appeal. Basically, so long as someone was never formally declared guilty of a criminal defense, made by the verdict of a jury, plea, or decision by the court, a Petition to Seal one’s records could be a great option.

A Difference between a Petition for Factual Innocence and Petition to Seal Records

A difference between a Petition for Factual Innocence and a Petition to Seal Records is that in the former, one’s record is sealed and destroyed. Meaning, once it is destroyed, there is no evidence one was ever arrested. Law enforcement is required to destroy all records of the arrest (photographs, police reports, etc.) after three years of the granting of the request. In the latter, however, one’s record is simply sealed. It is not destroyed. Though, for the purposes of answering the question of whether one has been arrested or not after one’s records are sealed, one can honestly answer “no” if their records were indeed sealed. Nevertheless, with a Petition to Seal your arrest records, if you want to become a peace officer, apply for public office, apply for licensure, or work for the California Lottery Commission, you are not relieved of your obligation to disclose the arrest. (But, your arrest is still sealed).

The nuances can be tricky so contacting an experienced Criminal Defense Attorney, like Kristine Koo, is important to your success.
source


Sealing & Destroying Your Arrest Record in California

Many people do not realize that having a “criminal record” doesn’t always mean that you have been convicted of a crime. Merely being arrested (even if charges were never filed) can have an adverse effect on an individual’s ability to obtain employment. We have had clients apply for their dream job only to have an old arrest from years ago pop up on their background check. Even though you may have never been charged with any crime, the previous arrest record can show up on your rap sheet and have serious social and employment consequences.

Fortunately in California, pursuant to Penal Code 851.8, there is a process by which an individual can seal and destroy his or her arrest records. Once your arrest records have been sealed and destroyed, all the records (including police reports, fingerprints, rap entry and booking photos) are deleted. Thereafter, you can legally and confidently say “no” if an employer asks you whether you have been arrested on a job application.

A person who wins a 851.8 motion is also declared, “Factually Innocent” of the charges. That’s why an 851.8 motion is sometimes referred to as a “Petition for Factual Innocence.”

Below, you will find a simple guide that can answer some of your questions regarding sealing and destroying your arrest records in California. If you would like more information, request a free consultation with one of our professional record clearance attorneys.

PC 851.8 – Determining Your Eligibility

If you have been arrested but there were no charges filed by the prosecutor’s office…
PC 851.8(a) states that “In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the offense.”

If you have been arrested and charges were filed but no conviction occurred (the underlying case was dismissed or you were acquitted through a California jury trial)…
PC 851.8(c) states that “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.

Submitting Your Petition to Seal & Destroy Arrest Records

If you have been arrested and no charges were filed, PC 851.8 requires that you submit a “Petition to Seal and Destroy Arrest Records” to the arresting law enforcement agency. The agency then has the option to agree to the petition or deny it. If granted, the police will seal your records for three years. After three years, they will destroy your records. If you do not hear back from the arresting law enforcement agency within 60 days after you have submitted your petition, it has been denied. A formal petition for factual innocence will then need to be filed in Superior Court. A hearing will then be held on the question of your factual innocence in front of a judge.

If your case was dismissed, or you were acquitted by a jury, there is a slightly different mechanism. In these cases, you must submit your petition directly to the Superior Court that would have jurisdiction over your case. A copy of the petition must be filed with the DA’s office so they can respond. A hearing will then be held on the question of your factual innocence in front of a judge.

How much time do you have to submit your petition?

Generally you can petition to seal and destroy your records in California up to two years after the date you were arrested or the date that charges were filed against you. But if you can show good cause, the judge has discretion to hear your case beyond these deadlines.

How does the judge determine whether to grant or deny your petition?

Judges usually hold a short hearing where witnesses testify to determine whether to grant or deny your petition to seal and destroy your California arrest records. The judge has to make a decision as to whether or not you are “factually innocent” of the charges against you. This is the most difficult part of these types of hearings. You will need to prove to a judge that there was no “reasonable cause” to arrest you in the first place. If you can prove this, the judge will grant your petition and order your arrest records to be sealed and destroyed permanently. It will be as if the arrest never happened.

Need help with your California arrest records?

The process to seal and destroy your arrest records can be very complicated and usually involves a hearing before a judge. Therefore it is crucial to have an experienced criminal defense attorney that can assist you throughout the process. The criminal defense attorneys at VIB Law are always available to discuss your case and answer your questions regarding sealing and destroying your arrest records in California.

~~ Important 2019 Update ~~

On October 12, 2017, the California Legislature passed Senate Bill 393, the Consumer Arrest Record Equity (CARE) Act, which offers a second possible procedure to conduct arrest record sealings. This new law took effect on January 1, 2018. The CARE Act added Section 851.91 to the California Penal Code.

Using the new procedures outlined in this statute, a person who was arrested but ultimately not convicted of a crime may now petition the court to have his or her California arrest record completely expunged.

Although both PC 851.8 and the new PC 851.91 statutes involve arrest record sealings, there are important differences in terms of the requirements and effects of these motions.

The main difference in terms of eligibility of these two statutes come down to the difference between being “legally innocent” and “factually innocent.”

  • PC 851.8 involves persons who are “factually innocent” of the crimes. In order words, “no reasonable cause” exists to believe that you committed the offense and you should never have been arrested in the first place.
  • On the other hand, the new PC 851.91 statute involves persons who are “legally innocent” of the crime they were arrested for. In other words, you were never found guilty beyond a reasonable doubt and were never convicted of any crime.

The two statutes also provide different levels of safety in terms of sealing your arrest record. For example, an 851.8 arrest record sealing permanently removes your record for all purposes, while an 851.91 sealing has some limitations. source

 


Cleaning Up Your Record

Penal Code 851.8 PCCertificate of Factual Innocence in California

SB 393: The Consumer Arrest Record Equity Act – 851.87-851.92  & 1000.4-11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons Click Here for the Details

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

Petition to Seal and Destroy Adult Arrest RecordsDownload the PC 851.8 BCIA 8270 Form Here


PENAL CODE – PEN 851.8.  

PART 2. OF CRIMINAL PROCEDURE [681 – 1620]

  ( Part 2 enacted 1872. )

  TITLE 3. ADDITIONAL PROVISIONS REGARDING CRIMINAL PROCEDURE [777 – 883]

  ( Heading of Title 3 amended by Stats. 1951, Ch. 1674. )

  CHAPTER 5. Arrest, by Whom and How Made [833 – 851.93]

  ( Chapter 5 enacted 1872. )

(a) In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest. A copy of the petition shall be served upon the prosecuting attorney of the county or city having jurisdiction over the offense. The law enforcement agency having jurisdiction over the offense, upon a determination that the person arrested is factually innocent, shall, with the concurrence of the prosecuting attorney, seal its arrest records, and the petition for relief under this section for three years from the date of the arrest and thereafter destroy its arrest records and the petition. The law enforcement agency having jurisdiction over the offense shall notify the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this subdivision, of the sealing of the arrest records and the reason therefor. The Department of Justice and any law enforcement agency so notified shall forthwith seal their records of the arrest and the notice of sealing for three years from the date of the arrest, and thereafter destroy their records of the arrest and the notice of sealing. The law enforcement agency having jurisdiction over the offense and the Department of Justice shall request the destruction of any records of the arrest which they have given to any local, state, or federal agency or to any other person or entity. Each agency, person, or entity within the State of California receiving the request shall destroy its records of the arrest and the request, unless otherwise provided in this section.

(b) If, after receipt by both the law enforcement agency and the prosecuting attorney of a petition for relief under subdivision (a), the law enforcement agency and prosecuting attorney do not respond to the petition by accepting or denying the petition within 60 days after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed, then the petition shall be deemed to be denied. In any case where the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, petition may be made to the superior court that would have had territorial jurisdiction over the matter. A copy of the petition shall be served on the law enforcement agency and the prosecuting attorney of the county or city having jurisdiction over the offense at least 10 days prior to the hearing thereon. The prosecuting attorney and the law enforcement agency through the district attorney may present evidence to the court at the hearing. Notwithstanding Section 1538.5 or 1539, any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant, and reliable. A finding of factual innocence and an order for the sealing and destruction of records pursuant to this section shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made. If the court finds the arrestee to be factually innocent of the charges for which the arrest was made, then the court shall order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency which arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this section to seal their records of the arrest and the court order to seal and destroy the records, for three years from the date of the arrest and thereafter to destroy their records of the arrest and the court order to seal and destroy those records. The court shall also order the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity. Each state or local agency, person or entity within the State of California receiving such a request shall destroy its records of the arrest and the request to destroy the records, unless otherwise provided in this section. The court shall give to the petitioner a copy of any court order concerning the destruction of the arrest records.

(c) 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. A copy of the petition shall be served on the prosecuting attorney of the county or city in which the accusatory pleading was filed at least 10 days prior to the hearing on the petitioner’s factual innocence. The prosecuting attorney may present evidence to the court at the hearing. The hearing shall be conducted as provided in subdivision (b). If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall grant the relief as provided in subdivision (b).

(d) In any case where a person has been arrested and an accusatory pleading has been filed, but where no conviction has occurred, the court may, with the concurrence of the prosecuting attorney, grant the relief provided in subdivision (b) at the time of the dismissal of the accusatory pleading.

(e) Whenever any person is acquitted of a charge and it appears to the judge presiding at the trial at which the acquittal occurred that the defendant was factually innocent of the charge, the judge may grant the relief provided in subdivision (b).

(f) In any case where a person who has been arrested is granted relief pursuant to subdivision (a) or (b), the law enforcement agency having jurisdiction over the offense or court shall issue a written declaration to the arrestee stating that it is the determination of the law enforcement agency having jurisdiction over the offense or court that the arrestee is factually innocent of the charges for which the person was arrested and that the arrestee is thereby exonerated. Thereafter, the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence.

(g) The Department of Justice shall furnish forms to be utilized by persons applying for the destruction of their arrest records and for the written declaration that one person was found factually innocent under subdivisions (a) and (b).

(h) Documentation of arrest records destroyed pursuant to subdivision (a), (b), (c), (d), or (e) that are contained in investigative police reports shall bear the notation “Exonerated” whenever reference is made to the arrestee. The arrestee shall be notified in writing by the law enforcement agency having jurisdiction over the offense of the sealing and destruction of the arrest records pursuant to this section.

(i) (1) Any finding that an arrestee is factually innocent pursuant to subdivision (a), (b), (c), (d), or (e) shall not be admissible as evidence in any action.

(2) Notwithstanding paragraph (1), a finding that an arrestee is factually innocent pursuant to subdivisions (a) to (e), inclusive, shall be admissible as evidence at a hearing before the California Victim Compensation Board.

(j) Destruction of records of arrest pursuant to subdivision (a), (b), (c), (d), or (e) shall be accomplished by permanent obliteration of all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred. However, where (1) the only entries on the record pertain to the arrest and (2) the record can be destroyed without necessarily affecting the destruction of other records, then the document constituting the record shall be physically destroyed.

(k) No records shall be destroyed pursuant to subdivision (a), (b), (c), (d), or (e) if the arrestee or a codefendant has filed a civil action against the peace officers or law enforcement jurisdiction which made the arrest or instituted the prosecution and if the agency which is the custodian of the records has received a certified copy of the complaint in the civil action, until the civil action has been resolved. Any records sealed pursuant to this section by the court in the civil actions, upon a showing of good cause, may be opened and submitted into evidence. The records shall be confidential and shall be available for inspection only by the court, jury, parties, counsel for the parties, and any other person authorized by the court. Immediately following the final resolution of the civil action, records subject to subdivision (a), (b), (c), (d), or (e) shall be sealed and destroyed pursuant to subdivision (a), (b), (c), (d), or (e).

(l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. Until January 1, 1983, petitioners can file for relief under this section for arrests which occurred or accusatory pleadings which were filed up to five years prior to the effective date of the statute. Any time restrictions on filing for relief under this section may be waived upon a showing of good cause by the petitioner and in the absence of prejudice.

(m) Any relief which is available to a petitioner under this section for an arrest shall also be available for an arrest which has been deemed to be or described as a detention under Section 849.5 or 851.6.

(n) This section shall not apply to any offense which is classified as an infraction.

(o) (1) This section shall be repealed on the effective date of a final judgment based on a claim under the California or United States Constitution holding that evidence that is relevant, reliable, and material may not be considered for purposes of a judicial determination of factual innocence under this section. For purposes of this subdivision, a judgment by the appellate division of a superior court is a final judgment if it is published and if it is not reviewed on appeal by a court of appeal. A judgment of a court of appeal is a final judgment if it is published and if it is not reviewed by the California Supreme Court.

(2) Any decision referred to in this subdivision shall be stayed pending appeal.

(3) If not otherwise appealed by a party to the action, any decision referred to in this subdivision which is a judgment by the appellate division of the superior court shall be appealed by the Attorney General.

(p) A judgment of the court under subdivision (b), (c), (d), or (e) is subject to the following appeal path:

(1) In a felony case, appeal is to the court of appeal.

(2) In a misdemeanor case, or in a case in which no accusatory pleading was filed, appeal is to the appellate division of the superior court.

(Amended by Stats. 2016, Ch. 31, Sec. 235. (SB 836) Effective June 27, 2016. Repealed conditionally as provided in subd. (o).)

source

 


To Learn More…. Read MORE Below and click the links Below 


Abuse & Neglect The Mandated Reporters  (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About:
The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRAClick Here

 Mandated Reporter formMandated ReporterFORM SS 8572.pdfThe Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS  INFO BULLETIN:
Click Here Officers and DA’s
 for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law  its a PDF file


Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969)1st Amendment

CURRENT TEST = We also have the TheBrandenburg testfor incitement to violence 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United StatesTrue Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment


Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment


Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of AssemblyPeaceful Assembly1st Amendment Right

We also have the Brayshaw v. City of Tallahassee1st Amendment Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019)1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006)1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

Freedom of the Press Flyers, Newspaper, Leaflets, Peaceful Assembly1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive 1st Amendment

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment


ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PCOffering False Evidence

Penal Code 134 PCPreparing False Evidence

Penal Code 118.1 PCPolice Officer$ Filing False Report$

Spencer v. PetersPolice Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC –  Making a False Police Report in California

Penal Code 115 PCFiling a False Document in California


Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse AllegationsFamily Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee RecoveryClick Here

Zamos v. StroudDistrict Attorney Liable for Bad Faith ActionClick Here


Mi$Conduct Pro$ecutorial Mi$Conduct

Prosecutor$

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

 

Mi$Conduct JudiciaMi$Conduct

Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial OfficerC.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial PerformanceJudge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case


Misconduct by Government Know Your Rights Click Here (must read!)

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242Deprivation of Right$ Under Color of Law

18 U.S. Code § 241Conspiracy against Right$

Section 1983 LawsuitHow to Bring a Civil Rights Claim

What is Tort?

 Suing for MisconductKnow More of Your Right$

Police Misconduct in CaliforniaHow to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & ProsecutorRules of Professional Conduct

Functions and Duties of the ProsecutorProsecution Conduct

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence
from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)


PARENT CASE LAW 

RELATIONSHIP WITH YOUR CHILDREN &
YOUR
CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law AppealLearn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) —
14th Amendment
this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights
5th Amendment
this CODE PROTECT$ all US CITIZEN$

9.32 Interference with Parent / Child Relationship
14th Amendment
this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)?  FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases


GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C)Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

 

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000)Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular RightsFourteenth AmendmentInterference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate?Reason for Joinder

Joinder In Family Law CasesCRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M


DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. EldridgeDue Process – 5th & 14th Amendment Mathews Test3 Part TestAmdt5.4.5.4.2 Mathews Test

UnfriendingEvidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts  1st Amendment
so if you are interested in learning about 
Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings


Retrieving Evidence / Internal Investigation Case 

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDAClick Here

Fighting Discovery Abuse in LitigationForensic & Investigative AccountingClick Here

Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below: 

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case InformationClick Here

Texts / Emails AS EVIDENCEAuthenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior CourtReleasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of AdmissibilityEvidence Admissibility

Confrontation ClauseSixth Amendment

Exceptions To The Hearsay RuleConfronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the ProsecutorProsecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

 


Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get StartedClick Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation 

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

WIC § 700.1If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in LimineWhat is a Motion in Limine?


Cleaning Up Your Record

Penal Code 851.8 PCCertificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest RecordsDownload the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act851.87 – 851.92  & 1000.4 – 11105CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in CaliforniaPenal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a MisdemeanorPenal Code 17b PC Motion


 Epic Criminal / Civil Right$ SCOTUS Help Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling Parental Right$ Help Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

 


Family Treatment Court Best Practice Standards

Download Here this Recommended Citation


Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.