Penal Code 851.8 PC – Certificate of Factual Innocence in California

Under California 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 851.8PC 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).¹

After this time, the criminal records and the petition get destroyed.²

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.

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.

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 takes about ninety days after filing a petition to seal to get a court order to seal an arrest record in California.

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).

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

Legal References:

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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.
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Cleaning Up Your Record

Penal Code 851.8 PC – Certificate 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 Records – Download 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).)

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