By: Diana Aizman
Founding Attorney at Aizman Law Firm
For individuals convicted of a felony who did serve time in state prison or were convicted of certain misdemeanor sex crimes an expungement of their conviction is not possible. However, you may be able to obtain a Certificate of Rehabilitation that has many of the same benefits as an expungement.
A Certificate of Rehabilitation is a document issued by the court under Penal Code Sections 4852.01-4852.21 that attests to your rehabilitation since your conviction of a felony for which you served state prison time or for a particular sex misdemeanor.
If issued to you, it has the following effect:
- Restores your civil rights except for 2nd Amendment rights (see below)
- It is official proof that you have been rehabilitated to the satisfaction of the criminal justice system
- You may not be denied public licensing or employment based on your conviction
- Relieves you of your legal obligation to register as a sex offender, if applicable
- Automatically qualifies you to apply for a Governor’s Pardon
A Certificate of Rehabilitation does not restore your 2nd Amendment right to possession or ownership of firearms, nor does an expungement unless your felony conviction was a “wobbler” and it was reduced to a misdemeanor before it was expunged. Otherwise, only a Governor’s Pardon can restore your gun rights.
Further, It does not seal or keep from public access your record of conviction.
If you were sentenced to either state prison or to county jail under California’s realignment program, then you may apply for the certificate so long as you meet the following additional criteria:
- You have not been re-incarcerated since your release
- You have continuously lived in California resident for at least 5 years since your release or for 3 years if you were on parole
- Additional time has passed depending on the type of offense (see below)
- Show proof of rehabilitation since your release
- You are not on probation for the conviction of another felony
- Or you served felony probation or were convicted of a misdemeanor sex offense under Penal Code 290 that has since been expunged
There is the minimum 5-year requirement for continuous California residency and an additional 2 years except for the following offenses:
Wait an additional 4 years if you were convicted of:
- Any sentence that carries a life sentence
- Homicide under PC 187
- Aggravated kidnapping under PC 209
- Train derailing or wrecking under PC 219
- Acts involving explosives or destructive devices that cause mayhem, great bodily injury or death
- Assault with force likely to cause great bodily injury
- Acts or omissions that cause another person’s death under Military and Veteran’s Code Section 1672(a)
Wait an additional 5 years for an offense that requires you to register as a sex offender under PC 290
However, you may only have to wait an additional 2 years for the following sex offenses:
- Certain violations of the laws regarding sexual exploitation of a child under PC 311
- Particular violations of child pornography laws under PC 311
- Obscene conduct or indecent exposure under PC 314
You can demonstrate proof of rehabilitation by submitting documentation of consistent employment; having received counseling for drug, alcohol or domestic abuse; participation in community events and affairs; having volunteered at non-profit agencies or companies; have no arrest record; and actively supported and participated in the nurturing, education and well-being of your children. Letters from an employer, pastor, neighbors, community leaders or volunteer agencies are extremely helpful.
Once your application is filed, you will receive a court date. A hearing is scheduled within about 120-days at which you or your attorney will present to the court documents demonstrating your rehabilitation as listed above.
Being issued a Certificate of Rehabilitation terminates your requirement to register as a sex offender under PC 290.
Crimes and misdemeanor sex offenses that will NOT ALLOW you to obtain it:
- A sentence of death
- A conviction of a misdemeanor unless it was a certain sex offense listed in PC 290
Convictions of any of the following sex offenses:
- Oral copulation with a minor under PC 288a(c)
- Lewd acts with a minor under PC 288
- Continuous sexual abuse of a minor under PC 288.5
- Forcible sexual acts of penetration with a child under PC 289(j)
- Statutory rape of a minor under 16 when charged as a felony
Your only other option if you do not fit any of the criteria for expungement or a Certificate or Rehabilitation is to apply for a Governor’s Pardon. A pardon will restore your 2nd Amendment rights as well as relieve you of your sex offender registration obligations, regardless of the offense for which you were convicted.