How to Obtain a California Certificate of Rehabilitation

How to Obtain a California Certificate of Rehabilitation

By Robert Little 

What is a Certificate of Rehabilitation?

  • A Certificate of Rehabilitation is a court certified document declaring that a person is now obeying the laws of the land and demonstrating good moral character.

 

 

  • The court will decide whether the applicant has satisfied certain requirements entitling him or her to a Certificate of Rehabilitation. To do this, the Court makes a determination by reference to Cal Pen Code § 4852.05: “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.”


What are the benefits of receiving a Certificate of Rehabilitation?

  • A California Certificate of Rehabilitation is a certified court document declaring that a person has been sufficiently rehabilitated.

 

  • A Certificate of Rehabilitation may end your obligation to register as a sex offender under California’s Megan’s Law.  See also the California Sex Offender Registration Act, California Penal Code 290.  See Cal Pen Code § 290.5 where a person may meet the requirements to obtain a Certificate of Rehabilitation, but still may not qualify to terminate obligations as a registered sex offender.

 

Subsequent good behavior or rehabilitation may be considered grounds for relief from sex offender registration requirements through the means of a Certificate of Rehabilitation and/or pardon. People v. Garcia (App. 2 Dist. 2008) 74 Cal.Rptr.3d 681, 161 Cal.App.4th 475.

The trial court has discretion to grant or deny a petition for a Certificate of Rehabilitation for a defendant subject to a lifetime requirement to register as a sex offender. People v. Zaidi (App. 1 Dist. 2007) 55 Cal.Rptr.3d 566, 147 Cal.App.4th 1470.

 

 

  • A Certificate of Rehabilitation may preclude a party at trial from impeaching a person’s credibility by introducing the prior felony conviction.  See Cal. Evidence Code § 788.

 

  • Once a Certificate of Rehabilitation is granted it is immediately reported to the Department of Justice by the court. The Department of Justice then transmits those facts to the Federal Bureau of Investigation in Washington D.C.  When the criminal record is reported by the department, it will also declare that the person has received a Certificate of Rehabilitation. Under Cal Pen Code § 4852.17.

 

  • The clerk of the court is required to immediately transmit certified copies of the certificate to the governor as an application for a full pardon. The governor may grant the pardon without any further investigation. Under Cal Pen Code § 4852.16. Thus a successful Certificate of Rehabilitation automatically becomes an application for Gubernatorial pardon.

 

  • The pardon must entitle the person the right to exercise all civil and political rights of citizenship, including but not only,

1)  The right to vote

2)  The rights to own, possess, and keep any type of firearm that may lawfully be owned provided that the felony conviction did not involve the use of a dangerous weapon. 28 Op.Atty.Gen. 178.

 

Although the purpose of the pardon is to restore civil and political rights, it does not erase the underlying record of conviction. People v. Mendez (App. 1 Dist. 1991) 286 Cal.Rptr. 216, 234 Cal.App.3d 1773.              

A pardoned ex-felon is still required to register under local ex-convict registration ordinances. 28 Op.Atty.Gen. 178, 10-5-56.

 

Who may apply for a Certificate of Rehabilitation?

 

1)  Any person convicted of a felony and sentenced to California State Prison.


2)  If that person was released on completion of the term or on parole. 


      i)  An individual serving on parole may file his notice of intention any time after one year from date of release on parole.


      ii)   For purposes of this section petitioner's status as a “mentally disordered sex offender” outpatient was not equivalent to being released on parole. Ayala v. Superior Court of State of Cal. for Ventura County (App. 2 Dist. 1983) 194 Cal.Rptr. 665, 146 Cal.App.3d 938.


3)  If that person has not been in prison, jail, detention facility or other punishable institution since being released. 


4)  If that person presents satisfactory evidence of five years residence in California before filing the petition.

 

OR any


1)  Person convicted of any sex offense in Section 290 in which the accusatory pleading has been dismissed pursuant to Section 1203.4.  If you wish to apply for a Certificate of Rehabilitation and you have been convicted of a misdemeanor sex offense, you must first seek a dismissal under Penal Code Section 1203.4. Please see our website regarding 1203.4 dismissals. 


2)  If that person has not been in prison, jail, detention facility or other punishable institution since the dismissal of the accusatory pleading. 


3)  If that person is not on probation for the commission of any other felony. 


4)  If that person presents satisfactory evidence of five years residence in California before filing the petition. 

 

How many years after release from custody must a person wait to apply?

  • The period of rehabilitation must constitute five years residence in California, plus an additional period of:   

 

  • 4 years if you were convicted of:

 

  1)  PC § 187: Murder 

  2)  PC § 209: Aggravated Kidnapping  

  3)  PC § 219: Train derailing or wrecking  

4)  PC § 4500: Assault with means likely to cause great bodily injury 

  5)  PC § 12310: Acts involving explosives or destructive devices causing death, mayhem or great bodily injury

  6)  Section (a) 1672: of the Military and Veterans Code: Acts or omissions that causes a person’s death 

  7)  Or any other offense that carries a life sentence   


  • 5 years if you were convicted of:


1)  Any offense where sex offender registration is required pursuant to PC § 290. 


  • Except convictions below which only require 2 years:


1)  PC § 311.2 (b) (c) or (d) : Violations of California’s child pornography laws 

 2)  PC § 311.3 & 311.10: California’s sexual exploitation of child laws 

 3)   PC § 314: Obscene conduct or indecent exposure  

 4)  Any convicted offense that is not listed above and does not carry a life sentence 


Who may NOT apply for a Certificate of Rehabilitation?


1) Any person that does not meet the requirements set forth above 


2) Any person convicted of a misdemeanor (unless it is one of the misdemeanor sex offenses listed in Penal Code 290 and a dismissal was granted under PC § 1203.4)

 

3) Any person serving mandatory life parole  


4)  Any person committed under death sentences  


5)  Any person in the military service  


6)  Any person convicted of one of the following specific California sex crimes:

             i.      Penal Code 286(c) sodomy with a minor,

             ii.      Penal Code 288 lewd acts with a minor (child molestation),

             iii.      Penal Code 288a(c) oral copulation with a minor,

             iv.      Penal Code 288.5 continuous sexual abuse of a child, or

              v.      Penal Code 289(j) forcible acts of sexual penetration with a child,

 

The governor has the power to pardon a person convicted of any sexual offense listed above despite the fact that relief cannot be obtained through a Certificate of Rehabilitation.

 

How does a qualified person apply for a Certificate of Rehabilitation?


  • A person who has satisfied the requirements set forth, including continuous residence in the state for at least five years after release from prison can file with the court a petition for the ascertainment and declaration of his or her rehabilitation. Cal Pen Code § 4852.06. 



  • The person seeking rehabilitation, must notify particular parties of the petition at least 30 days prior to the date set for such hearing. Cal. Pen Code § 4852.07. This includes notification to: 

         1)  The district attorney in the county in which the petition is filed. 

         2)  The district attorney of each county in which the person was convicted of a felony or a crime that was dismissed pursuant to Cal. Pen. Code 1203.4.  

         3)  The office of the governor

 

  •  Under Cal Pen Code § 4852.1, the court may require testimony and production necessary to thoroughly evaluate the record of the person seeking a Certificate of Rehabilitation. These documents may include, but are not limited to: 

    1)  All records and reports relating to the crime of which the person was convicted 

    2)  Record of the trial 

    3)  Report of the probation officer 

    4)  Prison records 

    5)  Doctor and psychiatric records recorded while in a penal institution 

    6)  Report by parole officer 

    7)  Any written reports or records concerning the activities of the person after release               

    8)  The court will then grant or deny the petition for a Certificate of Rehabilitation. 


After receiving a Certificate of Rehabilitation, how does a person apply for a pardon?


  • Once a person has been granted a Certificate of Rehabilitation by the court; the certificate is immediately reported to the office of the governor.  


  • The certified copy of Certificate of Rehabilitation shall act as an application for a full pardon. 


  • The governor, without any further investigation, may issue a pardon. 
    • The exception to this rule is that if you have been twice convicted of any felony. In that case, you must have the recommendation of a majority of the California Supreme Court before the governor can pardon you without further review.                                                        
    • Once a person is granted a full unconditional pardon by the governor, as a result of the Certificate of Rehabilitation, the pardon should allow the person to exercise all civil and political rights including, but not only;

           1)  The right to vote

           2)  The rights to own, possess, and keep any type of firearm that may lawfully be owned provided that the felony conviction did not involve the use of a dangerous weapon. 28 Op.Atty.Gen. 178.

 

 Although the purpose of the pardon is to restore civil and political rights, it does not erase the underlying record of conviction. People v. Mendez (App. 1 Dist. 1991) 286 Cal.Rptr. 216, 234 Cal.App.3d 1773.              

A pardoned ex-felon is still required to register under local ex-convict registration ordinances. 28 Op.Atty.Gen. 178, 10-5-56.