Seal Record Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/seal-record/ Christian, Political, ‎‏‏‎Social & Legal Free Speech News | Ⓒ2024 Good News Media LLC | Shepherd for the Herd! God 1st Programming Sun, 31 Dec 2023 01:22:37 +0000 en-US hourly 1 https://wordpress.org/?v=7.0.2 https://goodshepherdmedia.net/wp-content/uploads/2023/08/Good-Shepherd-News-Logo-150x150.png Seal Record Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/seal-record/ 32 32 Seal & Destroy a Criminal Record https://goodshepherdmedia.net/seal-destroy-a-criminal-record/ Thu, 02 Mar 2023 20:32:27 +0000 https://goodshepherdmedia.net/?p=12277 Seal & Destroy a Criminal Record

Information on sealing and destroying an arrest record can be found at California penal code section 851.87 through 851.92. For purposes of PC 851 motions the defendant is referred to as the Petitioner. A petitioner’s request to seal and destroy an arrest record may be sought in several situations, including after the successful completion of a diversion program or after the defendant was arrested but not convicted of the crime for which he or she was arrested.

​Diversion Related 851 Motion: Diversion is program whereby an accusatory pleading is placed on hold while the defendant completes terms of diversion. Terms of diversion are similar to probation terms and usually include an order to pay fines, stay out of trouble, complete classes, etc. If the terms of diversion are successfully completed the defendant’s criminal case is dismissed (diverted). Thereafter, the defendant may request that the court seal and destroy the defendant’s arrest and diversion sentence (PC 851.87 Abbrev.). More information on diversion programs may be found at Diversion.

​Note: For arrest records that are sealed after the successful completion of diversion the defendant may state that he or she has not been arrested except in certain circumstance, including, but not limited to, a response to a direct question in an application to become a peace officer.

​Employment: The petitioner may not have his or her criminal record that is sealed and destroyed after a diversion program used against him or her to deny employment (PC 851.87).

​No Conviction after Arrest: Per PC 851.91(a) a person who is arrested but not convicted of a crime may petition the court to have his or her arrest related records sealed (PC 851.91 Abbrev.).

​For purposes of PC 851.91 motions, an arrest does not result in a conviction if any of the following is true:

  • The statute of limitations has run on every offense upon which the arrest is based;
  • ​the prosecutor timely filed criminal charges, but the arrest did not lead to a conviction because the criminal charges were dismissed and may not be refiled, or
  • ​because the defendant was acquitted of the criminal charges.

​

Exception: If the defendant intentionally evaded law enforcement efforts to prosecute the arrest then he or she may be denied the sealing and destruction of his or her criminal record. This is true even if the any of the above required condition would otherwise apply to the defendant’s 851 petition.

​PC 851.91 After Appeal: If the defendant was found guilty at a criminal trial but his or her conviction was reversed on appeal and any of the condition above apply then the defendant may petition to have his or her arrest sealed pursuant to PC 851.91.

​Limitations: A petition may have his or her criminal arrest and related records sealed and destroyed as a matter of right if the arrest is not based upon domestic violence with a pattern of domestic violence, child abuse with a pattern of child abuse, or elder abuse with a pattern of elder abuse, unless the court finds that granting the petition serves the best interest of justice.

​Note: A pattern of abuse means “two or more convictions, or five or more arrests, for separate offenses occurring on separate occasions within three years from at least one of the other convictions or arrests.” (PC 851.91)

​In determining whether the granting the 851.91 petition would be in the interest of justice (despite the fact that the defendant has a pattern of abuse prior to the current arrest) the court will consider the following: the hardship to the petitioner, the good conduct of the petitioner, the circumstances of the petitioner’s prior arrests, and more. In other words, if the petitioner is arrested for a crime, and that arrest never leads to a criminal conviction, then the petitioner may have his or her arrest sealed.

In Sum, If the arrest was for a crime that did not involve a pattern of abuse against a child, a person domestically related to the petitioner, or an elder, then the petitioner may have his or her arrest sealed as a matter of right; but, if the arrest did involve a crime for which the petitioner has a pattern of abuse against a child, a domestically related person, or an elder, then the defendant will be required to show that the sealing of his or her arrest record would be in the best interest of justice (PC 851.91).

​Petition Procedure: PC 851 petitions start with the filing of a petition to seal and destroy arrest and related records with the proper court (the court that has jurisdiction over the matter where the arrest occurred). Copies of the petition must be served on the arresting law enforcement agency and on the prosecutor no less than fifteen days before the petition is heard in criminal court. Thereafter, the prosecuting attorney may file a response to the petition. The district attorney’s response may include police reports and other records in his or her efforts to show that the petition should not be granted the requested relief. If the district attorney objects at the initial hearing on the matter, the hearing will be continued at least sixty days so that the prosecuting attorney can prepare a more thorough response.

​Note: In cases where the defendant has a right to the sealing and destruction of arrest and related records as a matter of right the district attorney is less likely to file a response to the petition (PC 851.91).

​If the petition to seal and destroy an arrest and related records is granted, whether the request is made after the successful completion of diversion (PC 851.87) or pursuant to a PC 851.91 motion, the petitioner’s arrest and related records will be sealed and destroyed according to the following: The court will send a report to the Department of Justice, the prosecuting attorney, and the relevant law enforcement agency stating that the relief sought was granted. The report will indicate that the arrest is deemed not to have occurred and the petitioner may answer question relating to the sealed arrest that he or she has not been arrested for the offense; however, as stated, the arrest is not sealed and destroyed for all purposes.

For example, a prosecuting attorney may use an arrest record against the defendant in subsequent prosecution even if that arrest record was sealed and destroyed pursuant to PC 851.87 or 851.91. In addition, a sealed and destroyed arrest record may not be denied in response to any direct question contained in a questionnaire or application for public office, for employment as a peace officer, for licensing by any state or local agency, or for contracting with the CA State Lottery Commission.

​Statistical Info Not Sealed: A sealing and destruction of an arrest record does not destroy the booking information related to that arrest. For example, the petitioner’s fingerprints, photographs, or DNA collected during the booking process remains in the records of the Department of Justice. Also, the destruction of an arrest record does not mean that an agency authorized to search the petitioner’s criminal history will not know the defendant was arrested; rather, the facts and circumstances of the arrest are sealed but petitioner’s criminal record may continue to reflect that an arrest was “sealed.”

​Court Records Sealed:  The records sealed means files, and materials created, compiled, or maintained by or for the court in relation to court proceedings, and includes, but is not limited to, indexes, registers of actions, court minutes, court orders, court filings, court exhibits, court progress and status reports, court history summaries, copies of state summary criminal history information and local summary criminal history information, and any other criminal history information contained in any of those materials (PC 851.92 Abbrev.).

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How to Seal & Destroy Arrest Records in California

If you were arrested for a crime but never convicted, California law allows you to get your arrest records sealed and destroyed as a matter of right. Sealing a record means that it will not show up on most criminal background checks. Records of arrest will be destroyed, including

  • police reports,
  • fingerprints,
  • booking photos, and
  • rap sheet entries.

The process to seal a record involves three key steps:

  1. You must first file a petition in the city or county where the arrest took place.
  2. The petition must be served on the local prosecuting agency and the police agency that made the arrest.
  3. Then a hearing takes place where a judge decides whether to grant or deny the petition.

A criminal defense attorney can handle the entire process for you.

The current law as to sealing originated as California Senate Bill 393, which then-Governor Jerry Brown signed into law on October 11, 2017. Called the Consumer Arrest Record Equity Act (CARE Act), SB 393 is now codified in Penal Code 851.87 PC. This section allows you to have your record of the arrest sealed as a matter of right when:

  • No criminal charges were ever filed,
  • Criminal charges were filed but later dismissed,
  • You were found “not guilty” (acquitted) in a jury trial,
  • Your conviction was vacated or overturned on appeal, or
  • You successfully completed a pretrial diversion or pre-sentencing program, such as Penal Code 1000 deferred entry of judgment. 1

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.

As of July 1, 2023 with the passage of Senate Bill 731 – The Clean Slate Act, most people’s arrest and conviction records will get automatically cleared from their criminal record through a process called “automatic relief“:

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

1. What are the benefits of sealing an arrest record?

Criminal records are public records. This means that anyone can access another person’s criminal history.

Prospective employers, apartment owners, state licensing agencies, insurance companies — even potential dating partners — can run a background check and see someone’s criminal history. Such people may not care whether an arrest was justified or resulted in a conviction.

California’s “ban the box” law (codified in AB 1008) prohibits employers from considering a job applicant’s arrests that did not ultimately lead to a conviction. Again, however, employers may dismiss some job candidates because of their arrest records without ever stating this.

But once an arrest record is sealed under PC 851.87, members of the public will no longer be able to see it. The arrest record, police investigative reports, photos, fingerprints and court records will be inaccessible except for limited use by the state of California or criminal justice agencies. In short, a record seal gives the defendant a fresh start.

2. What is California’s Clean Slate Law / SB-731?

In full effect as of July 1, 2023, California’s Clean Slate Law (SB-731) automatically clears most arrest and conviction records from your criminal history after certain conditions or waiting periods are met.

Your California criminal record When your record is eligible for automatic relief (in most cases)
Misdemeanor arrest with no charges brought 1 year after the arrest
Misdemeanor charge which gets dismissed Immediately after the dismissal
Misdemeanor conviction where you are granted probation Immediately after probation is done
Misdemeanor conviction where you are not granted probation 1 year after case closes
Felony arrest with no charges brought 3 years after the arrest
Felony charge which gets dismissed Immediately after the dismissal
Felony conviction where you are granted probation (not including serious, violent, or sex offender crimes) Immediately after probation is done
Felony conviction where you are not granted probation (not including serious, violent, or sex offender crimes) 4 years after case closes

The Clean Slate Act takes the burden off you to file a motion to seal or expunge your record. Plus for the first time, it allows for automatic relief of felony convictions where you may have been incarcerated – thereby greatly increasing the employment and housing prospects for countless people.2

Note that the automatic record relief process may get delayed if you pick up new criminal cases in the interim. Plus if your criminal record is never eligible for automatic relief, you still may be able to get relief by filing a petition to seal or expunge.

Also note that automatic relief does not restore firearm rights.

3. Who is eligible to seal an arrest?

Penal Code 851.87 gives people the right to have an arrest record sealed as long as their arrest did not result in a conviction. For purposes of PC 851.87, an arrest did not result in a conviction if any of the following apply:

  • No charges were filed and the statute of limitations on each possible felony, misdemeanor, or infraction charge has expired;3
  • Charges were filed but they were later dismissed and cannot be refiled (for example, as the result of a Penal Code 995 motion);4
  • Charges were filed but the defendant was acquitted (found “not guilty”) at trial;
  • The defendant was convicted, but the conviction was vacated or reversed on appeal and the charge(s) may not be refiled; or
  • Charges were dismissed after the defendant successfully completed a pretrial or pre-sentencing program such as drug diversion.5

Note that as of July of 2022, California has been automatically sealing misdemeanor records of people who have stayed out of trouble for one year. Then as of July of 2023, California is automatically sealing most felony records of people who have stayed out of trouble for four years.

However, this automatic record sealing process excludes people convicted of serious or violent felonies. These people would still need to formally petition for a record seal. Plus, sex offenders generally cannot get a record seal.6

how to expunge a conviction under California Penal Code 1203.4 PC. Expunging is a more difficult process since the defendant has pleaded guilty or “no contest” to, or been convicted of, a crime.

man in handcuffs - California has a process for people to seal and destroy their arrest records

The key is that there was no conviction and no exceptions apply.

4. What does it mean to seal an arrest “as a matter of right”?

Under the old law (Penal Code 851.8 PC) the person who was arrested had the burden of proving that he or she was “factually innocent.”

SB 393 / PC 851.87 shifts the burden of proof to the prosecutor to prove that someone is not entitled to seal their record — for instance due to a pattern of domestic violence or because charges can still be filed.

Almost everyone else is entitled to have their arrest records sealed as a matter of right (automatically). The key is that the arrest did not result in a conviction and no exceptions apply.

5. Who is NOT eligible to have an arrest record destroyed in California?

A person is not eligible to have an arrest record sealed if any of the following apply:

  • He or she may still be charged with any of the offenses upon which the arrest was based;7
  • The arrest was for murder or another crime for which there is no statute of limitations (unless the person was acquitted or found factually innocent of the charge);8
  • The person was not charged because he or she intentionally evaded law enforcement efforts to prosecute the arrest, such as by absconding from the jurisdiction;9
  • The person evaded efforts to prosecute the arrest by engaging in identity fraud and was subsequently charged with a crime for that act of identity fraud.10

6. What counts as a “pattern” of domestic violence or abuse?

People are not entitled to seal a California arrest as a matter of right if their criminal record shows a “pattern” of:

  • Domestic violence,
  • Child abuse, or
  • Elder abuse.

Under SB 393 and California Penal Code 851.91 a “pattern” is defined as two or more convictions, or five or more arrests, within a three-year period.11

However, people who fall into this category can still petition to have their records sealed on the grounds that doing so would “serve the interests of justice.”

In determining whether the interests of justice would be served by sealing an arrest, the judge may consider any relevant factors, including (but not limited to):

  • Hardship to the petitioner caused by the arrest that is the subject of the petition;
  • Declarations or evidence regarding the petitioner’s good character;
  • Declarations or evidence regarding the arrest; or
  • The petitioner’s record of convictions.

7. When can a sealed arrest record be legally used in California?

Although sealing a record effectively destroys it for most purposes, it does not entirely cease to exist.

The sealed arrest may be pleaded and proved if the petitioner is subsequently prosecuted for any other offense.12

Additionally, a criminal justice agency may, in the regular course of its duties, access and disclose the arrest to other law enforcement agencies to the same extent as if it had not been sealed.13

Sealing also does not relieve the petitioner from:

  • Any existing duty to register as a sex offender pursuant to California Penal Code 290 PC;
  • Any legal prohibition against holding public office that may result from the arrest;14
  • Any prohibition against owning or possessing a firearm or susceptibility to a conviction for violating California’s “felon with a firearm” law;15 or
  • The obligation to disclose the arrest as otherwise required by law in response to a direct question on an application for:
    • Public office,
    • Employment as a peace officer,
    • Licensing by any state or local agency, or
    • A contract with the California State Lottery Commission.16

Finally, it should be noted that sealing an arrest applies solely to the specific arrest being contested. It does not erase one’s entire criminal record. People must submit a separate petition for each arrest on their record that did not result in a conviction.

8. Is there a deadline for moving to seal my California arrest record?

Under prior California Penal Code 851.8 people had just two years from the later of their arrest or the filing of charges to petition to seal their arrest record. Penal Code 851.87 contains no time limit for petitioning.

However, the new law has not yet been tested in court.

Accordingly, we recommend filing a petition to seal an arrest as soon as it is no longer possible for the prosecutor to file or refile charges.

An experienced California criminal lawyer can help you determine when you have eligibility to file for relief.

9. What is the process?

Note that the record seal process is automatic for most

  • misdemeanors (if you stayed out of trouble for one year) and
  • non-serious and non-violent felonies (if you stayed out of trouble for four years).17

9.1. Filing the petition with the court

A petition to seal an arrest record in California must be filed either:

  • In the superior court in which charges based on the arrest were filed or,
  • If charges were not filed, in the city or county in which the arrest occurred.

The petition must then be legally served on both:

  • The prosecuting attorney of the city or county in which the arrest occurred, and
  • The law enforcement agency that made the arrest.18

Penal Code 851.91 requires the following information to be provided with the petition to seal the arrest record:

  • The petitioner’s name and date of birth.
  • The date of the arrest for which sealing is sought.
  • The city and county where the arrest took place.
  • The name of the law enforcement agency that made the arrest.
  • Any other information identifying the arrest, such as a case or court number.
  • The alleged offenses upon which the arrest was based or charges were filed.
  • A statement that the petitioner is entitled to have his or her arrest sealed either as a matter of right or in the interests of justice, as applicable.
  • If the petition is based on the interests of justice, a statement of how those interests would be served by granting the petition and declarations in support.19

9.2 The hearing

If the District Attorney contests the petition the court will schedule a hearing.

The county in which you live will determine whether you must personally appear in court for the proceedings or whether your criminal defense attorney can appear on your behalf.

At the hearing the judge will examine the arrest record and, if necessary, evidence of why sealing is in the interests of justice.

Because the judge has so much discretion in deciding whether to grant or deny your motion to seal and destroy your California arrest records — and because the judge can deny your motion with prejudice so that you may not re-file your request — it is critical to hire a skilled California criminal defense attorney.

A responsible attorney will thoroughly research your court case and make sure all paperwork is done correctly the first time to ensure that no time is lost due to incomplete or inadequate forms. S/he will also conduct the PC 851.87 hearing and argue your case to the judge.

10. How long does it take?

If your criminal record is eligible for an automatic seal pursuant to the Clean Slate Act, your record should be cleared within a month. Otherwise, it typically takes about ninety (90) days after filing a petition to get a court order to seal an arrest record in California.

Within 30 days of the court’s issuance of the order to seal an arrest record, the court will notify:

  • The law enforcement agency or agencies that made or participated in the arrest,
  • The law enforcement agency that administers the master criminal history records, and
  • The California Department of Justice.

The petitioner’s master criminal record and court record will then be updated to note that the arrest has been sealed. The file will be stamped that the record may not be released outside the criminal justice sector.

The responsible local law enforcement agency will ensure that this information is included in all master copies, digital or otherwise, of the police investigative report related to the arrest that was sealed.

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

  • 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).20

11. What remedy do I have if a sealed arrest record is released?

Improper dissemination 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.

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

Our California personal injury lawyers offer free consultations to people who have suffered damages as a result of their arrest record being unlawfully released.

12. What is the difference between sealing arrest records and sealing juvenile records?

Sealing and destroying an adult arrest record under PC 851.87 is a completely different process from sealing a juvenile record. You are eligible to seal your California juvenile criminal record if

  • You are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
  • As an adult, you have not been convicted of any crimes involving moral turpitude (that is, crimes that involve dishonesty or immoral behavior), and
  • There is no pending civil litigation based on the juvenile incident.21

 

 

Legal references:

  1. Penal Code 851.91; 851.92(b)(2)(B). See, for example, People v. E.B.(Cal. App. 6th Dist., 2020) 51 Cal. App. 5th 47. Before the enactment of SB 393, it was difficult for someone whose arrest did not result in a conviction to get the arrest record sealed. The person essentially had to prove to bring a petition for factual innocence per PC 851.8 and show that the person never should have been arrested — even when the prosecutor never filed charges or the charges were later dismissed. The arrest would then show up on the criminal background checks run by potential employers, landlords and others, leading to unfair discrimination against innocent people. Under the new law, all a person must do is demonstrate to a judge that the arrest did not result in a conviction (“legal innocence”). The burden then shifts to the prosecutor to prove that the applicant is NOT entitled to have his or her record sealed (for instance because the person has a background of domestic violence).
  2. SB-731. AB 1076. PC 1203.045. PC 851.93. See old Penal Code 851.8 PC. The old procedure required people who were arrested but not charged to submit a “petition to seal and destroy arrest records” to the relevant law enforcement agency. Not hearing back in 60 days indicated the agency denied the petition. Otherwise, the agency would seal the record and – after three years – physically destroy it. Finally, a petition for factual innocence would need to be filed with the relevant superior court, which will then hold a hearing on the matter. In cases where there were charges followed by a dismissal or acquittal, the person would instead submit the petition to the court and D.A. rather than the police agency. The court would then hold a hearing on the matter.
  3. California Penal Code 851.91(a)(1)(A).
  4. Penal Code 851.91(a)(1)(B)(i).
  5. Penal Code 851.91(a)(1)(B)(ii) & (iii).
  6. Senate Bill 731 (2022). Penal Code 851.93. Soumya Karlamangla, California Will Soon Have the Nation’s Most Expansive Record-Clearing Law, NY Times (November 28, 2022).
  7. Penal Code 851.91(a)(2)(A).
  8. Penal Code 851.91(a)(2)(B).
  9. Penal Code 851.91(a)(2)(C). Note that the mere existence of bench warrants or failures to appear that were adjudicated before the case closed with no conviction do not establish intentional evasion.
  10. Penal Code 851.91(a)(2)(D).
  11. Penal Code 851.91(c)(2).
  12. Penal Code 851.91 (e)(2)(B)(i).
  13. Penal Code 851.92 (b)(6).
  14. Penal Code 851.91 (e)(2)(B)(iv).
  15. Penal Code 851.91 (e)(2)(B)(iii).
  16. Penal Code 851.91 (e)(2)(B)(ii).
  17. Senate Bill 731 (2022). Penal Code 851.93.
  18. Penal Code 851.91 (b)(1)(B) & (D).
  19. Penal Code 851.91(b)(1)(E).
  20. Penal Code section 851.92(b)(2)(B)(6).
  21. California Welfare and Institutions Code 781 and 781.5.
  22. 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
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To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

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

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

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

We also have the Watts v. United States – True 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

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

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

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

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We also have the Brayshaw v. City of Tallahassee – 1st 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 Officials – 1st Amendment

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

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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

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Penal Code 134 PC – Preparing False Evidence

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

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Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family 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 Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Mi$Conduct – Pro$ecutorial Mi$Conduct

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Pen. Code, § 1424 – Recusal of Prosecutor

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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

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]]> California could give more than a million people with criminal records a fresh start https://goodshepherdmedia.net/california-could-give-more-than-a-million-people-with-criminal-records-a-fresh-start/ Fri, 09 Sep 2022 10:00:14 +0000 https://goodshepherdmedia.net/?p=4892 California could give more than a million people with criminal records a fresh start

Sealing felony records is integral to a bill sitting on Gov. Gavin Newsom’s desk.

By Rachel M. Cohenrachel.cohen@voxmedia.com  updated
Rachel M. Cohen has been covering social policy and politics for over a decade in Washington D.C. She is a senior domestic policy reporter at Vox.   Encounters with the criminal justice system, no matter how long ago or for what reason, can ruin a person’s life. California is on the verge of an ambitious attempt to change that.  An estimated 70 million to 100 million Americans have a criminal record, a history with law enforcement that turns up on background checks and sometimes Google searches. Applicants with criminal records can be half as likely as those without them to get a callback or job offer. Nearly 9 in 10 employers use criminal background checks; so do 4 in 5 landlords, and 3 in 5 colleges and universities. These practical realities make it harder to successfully reintegrate into society, in what researchers call “collateral consequences” of mass incarceration.  Most states have laws allowing for some form of criminal record clearing.
Eligible individuals — generally those with no convictions, or who were convicted of a low-level offense — are typically required to petition a judge or state agency for clearance. Most don’t, whether because ofthe cost, complexity, or simply from lack of information. One University of Michigan study published in 2019 found over 90 percent of those eligible didn’t apply. As a result, the “Clean Slate” movement was born — a recentpush by criminal justice reformers to automatically clear,orseal from public view, records for eligible offenses.
Pennsylvania was the first state to enact automatic record clearing in 2018, followed by Utah, California, Michigan, Virginia, Delaware, and Colorado. Michigan’s law — passed in 2020 — was the first state to automatically clear some prior felony offenses.  A new bill, SB 731, recently passed by the California legislature and now sitting on Gov. Gavin Newsom’s desk, would go further. If signed, SB 731 would significantly expand automatic sealing eligibility for people who served time in prison. And while people with violent, serious felony records would not be offered the automatic “clean slate,” they could, for the first time, petition to have their records sealed. Virtually all ex-offenders, except registered sex offenders, would now be eligible for relief.

“Clean slate automates the current process, but what we said is, the current process sucks,” said Jay Jordan, CEO at Alliance for Safety and Justice, the criminal justice group that has led the charge for SB 731. Jordan said they’ve been focused on making the petition process easier for individuals with records, so that everyone could have their fair day in court.

Two decades ago Jordan was sentenced to prison for a gun robbery charge. “I did eight years in prison and when I got out at 26 and tried to navigate the world, I realized I couldn’t,” he told Vox. He was rejected from various jobs and he and his wife are still facing barriers to adopting a child. “I’ve dedicated my life to trying to change this,” he said. “If I can get free, then everyone else can get free.”

How SB 731 would work

The bill’s author, state Sen. Maria Elena Durazo, wanted to help ex-offenders have an easier time transitioning out of prison. “About 75 percent of formerly incarcerated individuals are still unemployed after a year of their release,” Durazo told the Los Angeles Times. “So something’s wrong there. We expect them to get back on their feet, but we’re not allowing them the resources to get jobs and [have] careers.”

Under SB 731, while landlords and most employers would not be able to view expunged records, public and private schools would still be able to review them during job background checks. Law enforcement, courts, and the state justice department would also still have access to the sealed records, and individuals would be required to disclose their criminal history if asked about it when applying to serve in a public office, among other exceptions. And the law would not apply to sex offenders.

“This is not an über-progressive bill,” acknowledged Jordan. “We worked heavily with folks who don’t necessarily share our vision, the licensing agencies, the DOJ, it went through the rings of fire. But because of that, we’ve got the ‘mod squad’ on board,” he said, referring to the more centrist lawmakers in the state legislature.

If signed into law, record relief would become available for most defendants convicted of a felony on or after January 1, 2005, if they had completed their sentence and any remaining parole and probation, and had not been convicted of a new felony offense for four years. Advocates originally wanted records sealed after two years, but that version failed to clear the state assembly a year ago.

Californians for Safety and Justice estimates at least 250,000 people would be eligible for automatic record sealing under SB 731, and possibly as many as 400,000. Will Matthews, a spokesperson for the group, told Vox they believe at least 1 million more individuals would gain the right to petition courts for record clearance.

What we know — and don’t know — about record clearing’s effects

Criminal justice researchers caution that even if automated record clearing expands to millions more people nationwide, it might not inevitably make it easier for people with criminal records to find jobs or places to live. While some research is in the works, not much is yet known about how these record-clearing policies work in practice.

Beginning in 2004, some criminal justice reformers pushed to pass“ban the box” policies, a bipartisan reform that effectively barred employers from asking about a job applicant’s criminal history until at least after an interview. The majority of states ultimately did it for public-sector employment and at least 12 did so for private employers as well.

But the success came with some unintended consequences. Research published in 2016 found employers were actually more likely to discriminate based on race following the passage of “ban the box” policies, thus increasing racial disparities in job interviews. More recent research suggests the reforms have done little to increase employment for ex-offenders in the private sector.

Last month, three California academics published a new analysis showing that the eligibility criteria for automatic record clearing can also exacerbate racial disparities. California’s record clearing laws — passed in 2016, 2018, 2019, and 2021 — have disproportionately benefited white Californians over Black Californians, the scholars found. “It is easy to see how racial disparities in criminal record relief might emerge, as a range of discretionary decisions by criminal justice actors from the time of arrest through to sentence completion can affect subsequent eligibility,” they wrote.

“Policies don’t start from nowhere,” Amy Lerman,one of the study’s co-authors, told Vox. “We know that Black Americans have historically been much more likely to live in heavily policed neighborhoods, to be stopped and questioned by police, and to be sentenced to prison or jail. That means when you pass a law that limits criminal record clearance to only people who have committed some types of crimes, or who have some types of criminal records, it is going to have a different impact across racial groups.”

SB 731 would be an improvement over the status quo, the California scholars told Vox, but racial disparities would likely persist until offenses classified as serious or violent, such as robbery, are included for automaticeligibility. They pointed to empirical research published in 2009 that found among people arrested at age 18, the risk that they would be arrested again eventually declined to match people of the same age who had not been arrested. It took7.7 years after a robbery arrest, 3.8 years after a burglary arrest, and 4.3 years after an aggravated assault arrest.

The impact of SB 731 would also likely come down to implementation. New notification systems may be needed so that eligible candidates become aware of their new rights; also needed are clear agency guidelines regarding missing data and timely communication between state agencies and commercial background companies.

Data collection and quality have been an issue for criminal justice reformers in the past, and the challenges are exacerbated by the rise of digitized records online. Every year, digital records of over 10 million arrests, 4.5 million mug shots, and 14.7 million court proceedings are digitally released nationwide. Often, outdated or false paper trails create additional barriers for those looking to seal their records.

Tiffany Lewis, a San Francisco-based consultant who advises tech employees on their job applications, predicted that SB 731 would do little to remove the kind of criminal information an employer routinely finds online. Private companies also aggregate, scrape, and share criminal record data. To prevent this, Sarah Esther Lageson, a professor of criminal justice at Rutgers University-Newark, said states need to issue stronger regulatory standards and limit employer and landlord uses of unregulated background checks.

Lageson told Vox that the best thing states could do is centralize their criminal record disclosure policies. “For instance,” she said, “police departments might disclose pre-conviction mug shots, while courts release a different set of criminal case information online, while the office in charge of releasing rap sheets might only disclose convictions from seven years ago.”

Such disclosure patchworks can cause harm and undermine automatic record-sealing efforts. “States might also consider ending the bulk release of pre-conviction records altogether, reserving the release of some mug shots and arrest or charging information on a case-by-case basis or through more traditional transparency law requests,” she said.

There’s new federal momentum for record relief

While there’s always a risk with criminal justice reform that advocates will pass incremental measures that leave too many behind, early experience with clean slate policies suggest activists are not looking at passing record-clearing legislation as a one-and-done activity.

California is not the only state pushing to expand eligibility from its initial reforms. Following the passage of Pennsylvania’s clean slate bill in 2018, a provision requiring payment of fines and fees for clearance emerged as a major barrier to relief. One analysis found that half of otherwise eligible misdemeanor convictions statewide and 75 percent of otherwise eligible misdemeanor convictions in Philadelphia would be disqualified due to relatively small amounts of outstanding debt. Two years later activists succeeded in removing the fines and fees requirement in Pennsylvania.

On the federal level, two bipartisan bills to aid automatic record clearing have alsopicked up momentum and are scheduled for their first House Judiciary Committee markups later this month. One bill, the Clean Slate Act, would automatically seal federal arrest records for individuals who weren’t convicted, and records for individuals convicted of low-level, nonviolent drug offenses after successfully completing their sentence.

A second bill, the Fresh Start Act, would create a federal grant program to help states build the infrastructure necessary to implement automatic record clearing. President Joe Biden had floated this latter idea while on the campaign trail in 2020.

“Historic levels of bipartisan momentum have continued to trickle up from the states to Congress,” said Rebecca Vallas, a senior fellow at the Century Foundation who helped develop the clean slate model.

For now, Jordan and other advocates in California remain optimistic that Newsom will sign SB 731 into law, even though the governor vetoed a bill last month to establish new supervised drug-injection sites. With rumors of presidential ambitions, some critics believe Newsom ducked signing the bill out of fear it would be used against him on a national campaign trail. A spokesperson for the governor, Omar Rodriguez, declined to comment on SB 731, but said “the bill will be evaluated on its merits.”

https://www.vox.com/policy-and-politics/23340644/clean-slate-automated-criminal-record-clearing-felonies-california

 

Why sealing records matters

Proponents say about 8 million Californians have a criminal or arrest record, or about one of every five state residents. A criminal record can trigger nearly 5,000 legal restrictions in California, many of which can limit job opportunities as well as the ability to get housing and educational opportunities, supporters said.

They estimate that 70 million people nationwide face nearly 50,000 legal restrictions based on a criminal or arrest record.

Nationwide, 37 states and more than 150 cities have adopted laws preventing employers from asking candidates about their criminal histories prior to a job offer, according to the National Employment Law Project. This law would go further by automatically sealing convictions for people who meet certain conditions.

Jay Jordan was with some friends 20 years ago in Stockton when they tried to rob someone on the street. Jordan said no one was hurt and no items were stolen, but Jordan got an eight-year prison sentence.

Once he was released, he said his criminal record made it hard for him to rejoin society. He said he tried to become a barber, a used car salesman and an insurance broker, but was barred from each industry because of his criminal record. He could not even volunteer to help at-risk youth.

He later found work as an organizer and now is CEO of the Alliance for Safety and Justice, a criminal justice reform group. But he said others have not been as fortunate as him.

“They’re locked out of the economy. And they’re not committing crimes, they’re just living in poverty and they stay there because they feel like they belong there,” Jordan said. “This (bill) gives them a sense of belonging to become full American citizens again.”

What kinds of records bill would cover

While the bill would not apply to serious or violent felonies, California has a narrow legal definition of violent crimes, including about two dozen of the most serious crimes like murder, voluntary manslaughter, attempted murder, kidnapping, assaults, arson, robbery and extortion.

The bill would apply to offenses like domestic violence, said Republican Sen. Shannon Grove, who joined all Republicans in the Senate and one Democrat — Sen. Melissa Hurtado of Sanger — in voting against the bill Thursday.

“These things are very violent things even though they are not listed as serious and violent in the penal code,” Grove said.

Creating a ‘permanent underclass’

Democratic state Sen. Maria Elena Durazo, the bill’s author, said in a statement that the lingering criminal records available through background checks create “a permanent underclass.” That can include, among others, “mothers that want to pursue new careers through education, fathers who want to coach, homeowners that want to join their HOA board, couples who may want to adopt, or grandchildren that want to care for their elderly grandparent.”

Seven reform organizations sponsored the bill, including Californians for Safety and Justice, which has pushed for numerous criminal justice like Proposition 47, the voter-approved ballot measure that reduced penalties for certain drug and property crimes in 2014.

Groups that opposed the bill include the 75,000-member Peace Officers Research Association of California, which argued California already offers more limited ways for lower level ex-felons to clear their records.

“By expanding the relief of penalties for all felonies, we are placing our communities at risk,” the association said. “By allowing violent criminals back on the street, with their record dismissed, they will have less deterrent to commit another crime.”

cited https://www.desertsun.com/story/news/nation/california/2022/08/18/california-senate-bill-731-us-law-sealing-criminal-records-maria-elena-durazo-gavin-newsom-sign/7835552001/

 

 

 

SB 731

  • California Senate Bill
  • 2021-2022 Regular Session

Criminal records: relief.

ABSTRACT

(1) Existing law establishes the Commission on Teacher Credentialing to, among other things, issue teaching and services credentials. Existing law requires the commission to appoint a Committee of Credentials and requires allegations of acts or omissions for which adverse action may be taken against applicants or holders of teaching or services credentials to be reported to the committee, including conviction for a controlled substance offense, as defined. Existing law requires the commission to deny an application for the issuance of a credential or the renewal of a credential for a person who has been convicted of a controlled substance offense. This bill would prohibit the record of a conviction for possession of specified controlled substances that is more than 5 years old and for which relief was granted from being presented to the committee or from being used to deny a credential. (2) Existing law authorizes a defendant who was sentenced to a county jail for the commission of a felony and who has met specified criteria to petition to withdraw their plea of guilty or nolo contendere and enter a plea of not guilty after the completion of their sentence, as specified. Existing law requires the court to dismiss the accusations or information against the defendant and release them from all penalties and disabilities resulting from the offense, except as specified. This bill would make this relief available to a defendant who has been convicted of a felony, as long as that conviction does not require registration as a sex offender. Existing law requires the Department of Justice, on a monthly basis, to review the records in the statewide criminal justice databases and identify persons who are eligible for records of arrest relief without requiring the filing of a petition or motion. Under existing law, a person is eligible for arrest record relief if they were arrested on or after January 1, 1973, and the arrest was for a misdemeanor and the charge was dismissed or criminal proceedings have not been initiated within one year after the arrest, or the arrest was for a felony punishable in the county jail and criminal proceedings have not been initiated within 3 years after the date of the arrest. This bill would, commencing July 1, 2023, generally make this arrest record relief available to a person who has been arrested for a felony, including a felony punishable in the state prison, as specified. Existing law, commencing January 1, 2022, and subject to appropriation, requires the Department of Justice, on a monthly basis, to review the records in the statewide criminal justice databases and identify persons who are eligible for automatic conviction record relief. Under existing law, a person is eligible for automatic conviction record relief if, on or after January 1, 1973, they were sentenced to probation, and completed it without revocation, or if they were convicted of an infraction or a misdemeanor, and other criteria are met, as specified. The bill, commencing July 1, 2023, would additionally make this conviction record relief available for a defendant convicted, on or after January 1, 2005, of a felony for which they did not complete probation without revocation if the defendant appears to have completed all terms of incarceration, probation, mandatory supervision, postrelease community supervision, and parole, and a period of 4 years has elapsed during which the defendant was not convicted of a new felony offense, except as specified. The bill would specify that conviction record relief does not release the defendant from the terms and conditions of unexpired criminal protective orders. This bill would state that conviction record relief does not affect the authority to receive, or take adverse action based on, criminal history information for purposes of teacher credentialing or employment in public education, as specified. The bill would prohibit disclosure of information relating to a conviction for possession of specified controlled substances when the conviction is more than 5 years old and when relief has been granted under these provisions. (3) Existing law requires the Department of Justice to maintain state summary criminal history information, as defined, and to furnish this information to various state and local government officers, officials, and other prescribed entities, if needed in the course of their duties. Existing law requires the department to provide the Commission on Teacher Credentialing with every conviction rendered against an applicant, retroactive to January 1, 2020, regardless of relief granted. Existing law makes it a crime for a person authorized by law to receive state summary criminal history information to knowingly furnish that information to a person who is not authorized to receive it. This bill would require the department to also provide that information to school districts, county offices of education, charter schools, private schools, state special schools for the blind and deaf, or any other entity required to have a background check because of a contract with any of those entities. The bill would prohibit the department from disseminating information for a conviction for possession of specified controlled substances if that conviction is more than 5 years old and relief has been granted. By expanding the scope of a crime, this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.

https://openstates.org/ca/bills/20212022/SB731/

 

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

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

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

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