Certificate of Rehabilitation & Pardon
Felony convictions where a term in state prison is
imposed require professional attention by a lawyer
skilled in expungements. There are two ways that
someone sentenced to state prison can obtain relief: (1) the Certificate of Rehabilitation and Pardon, and (2) the Direct Application for Pardon.
A full pardon, whether direct or through
rehabilitation proceedings, restores all of the
rights and privileges of which the person was
deprived by reason of the conviction, with some
exceptions. In addition, a pardon relieves a sex
offender of the duty to register under Penal Code
Section 290. A pardon does not automatically restore
any license, permit, or certificate that had been
taken as the result of the conviction.
A Governor's pardon is granted only to individuals
who have demonstrated a high standard of constructive
behavior following conviction for a felony, or in
some cases, for certain specified misdemeanor sex
offenses. Obtaining a pardon is a distinct
achievement based upon proof of a useful, productive,
and law-abiding life following conviction.
Pardon applications will not be considered
unless an applicant has been discharged from
probation or parole for at least ten years
and has not engaged in further criminal
activity during that period. While the
receipt of a Certificate of Rehabilitation
will be considered in evaluating a pardon
application, it is but one factor and is not
the sole determinant. The ten-year rule may
be waived in truly exceptional circumstances,
if the applicant can demonstrate an earlier,
specific need for the pardon.
Once the threshold criteria has been met,
the application will be reviewed to determine
whether the applicant has met the standards
set forth in California Penal Code section
4852.05, which states, "During the period of
rehabilitation, the person shall live an
honest and upright life, shall conduct
himself or herself with sobriety and
industry, shall exhibit a good moral
character, and shall conform to and obey the
laws of the land."
Certificate of Rehabilitation
Certificates of Rehabilitation are first sought
from the trial court. If a certificate issues, the
trial court recommends that the governor grant a
pardon. The governor has discretion to grant or deny
a pardon. The pardon may be granted without further
investigation, except that a person twice convicted
of felonies must also have the recommendation of a
majority of the supreme court.
In order to obtain a Certificate of
Rehabilitation, the applicant must be a California
resident for at least three years before the filing
of the petition. There is a period of rehabilitation
that is required before filing, during which the
person must lead an honest life, and be free from
convictions. The amount of time varies, depending
upon the underlying criminal conviction.
Dismissal of the underlying charges pursuant to
Penal Code Section 1203.4 is not required before
seeking a Certificate of Rehabilitation, so long as
the person served a prison sentence. If probation was
imposed instead of a prison sentence, dismissal must
first be obtained, and the defendant must be free
from felony probation.
A Certificate of Rehabilitation is a court order,
which declares that a person who has been convicted
of a felony is rehabilitated. If a petition for a
Certificate of Rehabilitation is granted, it is
forwarded to the Governor by the granting court and
constitutes an application for a pardon.
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The laws pertaining to the Certificate of
Rehabilitation can be found in California Penal Code
sections 4852.01 to 4852.21.
Generally, a person who has been convicted in
California of a felony, or a misdemeanor sex offense
specified in California Penal Code section 290, the
accusatory pleading of which has been dismissed
pursuant to Penal Code section 1203.4, may apply to
the superior court in his or her county of residence
for a Certificate of Rehabilitation, provided that he
or she meets behavioral requirements and the
applicable period of rehabilitation. (California
Penal Code section 4852.06.)
An exception to this rule involves individuals
convicted of the following Penal Code sections:
286(c), 288, 288a(c), 288.5, and 289(j). Effective
January 1, 1998, AB 729 amended Penal Code sections
1203.4 and 4852.01 to prohibit these specified sex
offenders from obtaining a Certificate of
Rehabilitation. Such individuals are no longer
eligible to receive a Certificate of Rehabilitation.
The granting of a Certificate of Rehabilitation
relieves some offenders from the sexual offender
registration requirement of Penal Code section 290. (See California Penal Code section 290.5 for a list
of persons not eligible for relief from
registration.) To determine your 290 registration
status, contact an attorney that knows the law in
this specialized area.
Who may apply?
Persons who are eligible to apply for a
Certificate of Rehabilitation include those who:
- Were convicted of a felony and served the
sentence in a California state prison; and
- Were discharged on completion of the term or
released on parole prior to May 13, 1943; and
- Have not been incarcerated in a state penal
institution since release; and
- Present satisfactory evidence of three years
residence in California immediately prior to the
filing of the petition.
or
- Were convicted of a felony, or a misdemeanor
sex offense specified in Penal Code section 290,
the accusatory pleading of which was dismissed
pursuant to Penal Code section 1203.4; and
- Have been discharged or released from custody
on probation; and
- Have not been incarcerated in any penal
institution, jail or agency since the dismissal of
the accusatory pleading; and
- Are not on probation for the commission of
any other felony; and
- Present satisfactory evidence of five years
residence in California immediately prior to the
filing of the petition.
or
- Were convicted of a felony on or after May
13, 1943; and
- Were sentenced to state prison or other
institution or agency; and
- Were discharged from custody or released on
parole; and
- Present satisfactory evidence of five years
residence in California immediately prior to the
filing of the petition.
Persons who are INELIGIBLE to apply for a
Certificate of Rehabilitation include:
- Those who do not meet the above requirements;
or
- Those who were convicted only of misdemeanors
(except those convicted of a misdemeanor sex
offense specified in Penal Code section 290, which
was dismissed pursuant to Penal Code section
1203.4); or
- Those who were convicted of Penal Code
sections 286(c), 288, 288a(c), 288.5, or 289(j); or
- Those who are serving a mandatory life
parole; or
- Those committed to prison under a death
sentence; or
- Those persons in the military service.
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When to apply?
Persons eligible to petition for a Certificate of
Rehabilitation may file the petition once the period
of rehabilitation has passed. The period of
rehabilitation begins to run upon the discharge of
the petitioner from incarceration due to the
completion of the term, or upon release on probation
or parole.
The period of rehabilitation constitutes five
years residence in California, PLUS:
- Four years in the case of persons convicted
of violation of California Penal Code sections 187,
209, 219, 4500, or 12310, or Military and Veterans
Code section 1672(a), or of committing any other
offense which carries a life sentence; or
- Five years in the case of any person
convicted of any offense or attempted offense for
which sex offender registration is required
pursuant to P.C. 290, except for convictions for
violations of subdivision (b), (c), or (d) of
Section 311.2, or of Section 311.3, 311.10, or 314.
For those convictions, two years shall be added to
the five years imposed by this section.
- Two years in the case of any persons
convicted of any offense not listed above and which
does not carry a life sentence; or
- The number of additional years ordered by the
trial court hearing the application for the
Certificate of Rehabilitation in the case of a
person serving consecutive sentences.
Rescission of Certificate of Rehabilitation
A district attorney in either the county of
conviction or the county of residence may petition
the superior court to rescind a certificate, if it
was granted for any offense specified in California
Penal Code section 290.
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Procedures for Applying
The petition must be filed in the superior court
of the petitioner's current county of residence. (California Penal Code section 4852.06.) The
petitioner is required to provide notice of their
filing to the district attorney in their county of
residence, as well as to the district attorney of
each county in which the petitioner was convicted of
a felony, and to the Governor's office.
All felony convictions, or misdemeanor sex
offenses specified in Penal Code section 290, for
which the accusatory pleading was dismissed pursuant
to California Penal Code section 1203.4, should be
included. This notice must indicate the date and time
of the hearing and must be sent to the district
attorneys at least 30 days before the hearing.
Each person who is eligible to initiate the
Certificate of Rehabilitation proceedings is entitled
to receive assistance in processing the petition from
all rehabilitative agencies, including adult
probation officers of the county, and state parole
agents; and, in the case of persons under the age of
30, assistance can be obtained from the Youth
Authority. During the court proceedings, the
petitioner may be represented by counsel of his or
her own choosing.
Once a petition is filed, the court will schedule
a hearing to consider the petition. Prior to the
hearing, the court may require an investigation by
the district attorney of the county of residence of
any and all matters pertaining to the petitioner.
At the hearing, the court may require testimony
and the production of records and reports pertaining
to the petitioner, including information about the
conviction offense, and his or her conduct both while
incarcerated and since release on probation or
parole.
If, after the hearing, the court finds that the
petitioner has demonstrated rehabilitation and
fitness to exercise all political and civil rights,
the court may make an order declaring that the
petitioner is rehabilitated. A certified copy of the
Certificate of Rehabilitation is then transmitted to
the Governor and becomes an application for a pardon.
Upon receipt of the application, the Governor may
request that the Board of Prison Terms conduct a
further investigation. Following a review, the
Governor may then grant the pardon. If the petitioner
has been convicted of more than one felony in
separate proceedings, the California Supreme Court
must also approve the grant of a pardon.
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Direct Pardon Application
Direct pardons refer to requests for pardon made
directly to the Governor. The governor has total and
complete discretion to grant or deny a pardon. The
pardon may be granted without further investigation,
except that a person twice convicted of felonies must
also have the recommendation of a majority of the
supreme court to obtain a pardon.
A direct pardon is usually sought by persons who
are not eligible for a certificate of rehabilitation,
such as nonresidents and misdemeanants.
Any person who has been convicted in California of
a felony, or a misdemeanor sex offense specified in
Penal Code section 290, the accusatory pleading of
which has been dismissed pursuant to Penal Code
section 1203.4, may apply to the Governor for a
pardon. Applications for pardons may be made in one
of two ways: either by way of an application for a
Certificate of Rehabilitation, or through a direct
traditional pardon application. The procedure
utilized will depend on the circumstances of the
applicant, and it is important to consult with a
lawyer to determine which is appropriate in any given
case.
Once an application for a pardon is filed under
either procedure, the Governor reviews the case. The
Governor has complete discretion in deciding whether
to grant a pardon, and a pardon is not granted to
every person who applies.
Pardon investigations are conducted for the
Governor by the California Board of Prison Terms,
Investigations Division.
The traditional pardon procedure is available to
those persons who are ineligible to petition for a
Certificate of Rehabilitation. This procedure is used
primarily, although not exclusively, by California
ex-felons who reside out-of-state and are therefore
unable to satisfy the residency requirement. The
traditional pardon procedure is also available to
those individuals who have convictions for Penal Code
sections 286(c), 288, 288a(c), 288.5, and 289(j). The
traditional pardon procedure is covered by California
Penal Code sections 4800-4813.
Applicants for a traditional pardon must write
directly to the Governor's Office. It is highly
recommended that a pardon applicant have the services
of an experienced lawyer to ensure that all of the
procedural requirements are met, and to increase the
chances of success. At a minimum, the letter should
include the following:
- Why a pardon is desired or needed;
- Date and circumstances of all felony offenses
of which the applicant was convicted;
- Dates the applicant was received in prison
and released from custody or placed on probation;
- Name of the applicant, including any aliases;
date of conviction; county and case number of
conviction, if known; prison number; name of parole
agent; current address and telephone number; and
- A brief, general statement of employment and
activities since conviction or release from
custody.
Upon receipt of the letter, the Governor's Legal
Affairs staff will review the information. After the
review, the Legal Affairs Office may send the
Application for Executive Clemency and Notice of
Intention to Apply for Executive Clemency forms to
the applicant.
The applicant should complete the Application for
Executive Clemency form and have it notarized. In
addition, the Notice of Intention to Apply for
Executive Clemency should be served on the District
Attorney of each county in which the applicant was
convicted of a felony, at least ten days prior to the
application.
The Acknowledgment of Receipt portion of the
notice form must be completed and signed by the
District Attorney. Both the application and the
completed notice must then be submitted to the
Governor's Office, along with a full statement of any
compensation paid to any person for assisting in the
procurement of a pardon.
Once the formal application is returned, the
Governor refers it to the Board of Prison Terms for
investigation. After the investigation, the case is
presented to the Executive Board for a decision as to
whether to recommend to the Governor that a pardon be
granted. The applicant is notified of when the Board
will be considering his or her case, and he or she is
given the opportunity to forward any additional
information, if desired. Pardon applicants do not
attend the pardon consideration meeting. Following
the meeting, the application, investigation report,
and the Board's recommendation are sent to the
Governor. Notification of the meeting result is also
sent to the applicant.
The Governor then reviews all of the information
and decides whether to grant a pardon. If the
applicant has been convicted of more than one felony
in separate proceedings, the California Supreme Court
must also approve the grant of a pardon.
There is no requirement that the Governor issue a
pardon to an applicant, and the length of time needed
for the completion of the pardon process cannot be
predicted.
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Effect of a Pardon
When a Certificate of Rehabilitation or pardon is
granted, the California Department of Justice and the
Federal Bureau of Investigation are notified. These
agencies' records are then updated to show that a
Certificate of Rehabilitation or a pardon has been
granted in regard to the conviction.
A pardon is also filed with the Secretary of
State, reported to the Legislature, and becomes a
matter of public record. Although no effort is made
to publicize the pardon application or issuance,
there is no guarantee that the issuance of a pardon
to a particular person will not become known to the
public.
Restoration of Rights
The granting of a pardon entitles the applicant to
exercise additional civil and political rights of
citizenship. The most frequent reasons people apply
for a pardon are for personal satisfaction, for
licensing or bonding purposes, and to restore
firearms privileges. Another frequent reason is to
enhance employment opportunities, even when no legal
disability exists.
A pardon does not seal or expunge the record of
the conviction. (California Penal Code section
4852.17.) Prior convictions may be considered after
the granting of a pardon, if the person is
subsequently convicted of a new offense.
A person who has been pardoned cannot state that
he or she has no record of arrests or convictions.
The person can state that he or she has been
convicted and has been pardoned.
An ex-felon becomes eligible to vote after being
terminated from probation or discharged from parole. (California Constitution, article 11, section 4.) A
pardon is not necessary to be eligible to vote.
A person who receives a pardon may serve on a trial
jury. (California Code of Civil Procedure section
203(a)(5) and California Penal Code section 4852.17.)
An ex-felon who receives a full and unconditional
pardon can be considered for an appointment to a
peace officer position as a county probation officer
or state parole agent, but cannot hold other peace
officer positions. (California Government Code
section 1029.)
A person convicted of a felony cannot own, possess,
or have access to any type of firearm, including a
rifle or shotgun. (California Penal Code section
12021.) However, if a full and unconditional pardon
is granted by the Governor, the person pardoned may
own and possess any type of weapon that may lawfully
be possessed and owned by other citizens in
California. The Governor cannot restore firearms
rights to a person who has been convicted of any
offense which involved the use of a dangerous weapon.
Pardons for out-of-state residents must specifically
state that rights pertaining to firearms are
restored. A California pardon does not necessarily
permit the possession of weapons under the laws of
another state or the federal government. The law
pertaining to the restoration of rights to own and
possess firearms can be found in California Penal
Code section 4854.
If you have not obtained a pardon restoring your
firearms rights, and you have access to a firearm of
any type, you are in violation of the law. For
example, having a firearm registered to a spouse, but
readily available to you in your place of residence,
is a violation.
The granting of a pardon does not prevent some
licensing agencies from considering the conviction
that has been pardoned in its determination of
whether a license to practice certain professions
should be granted or restored. The law pertaining to
the effect of a full pardon on licensing boards can
be found in California Penal Code section 4853.