Chapter 3.5. Procedure For Restoration Of Rights And Application For Pardon of California Penal Code >> Title 6. >> Part 3. >> Chapter 3.5.
(a) A person convicted of a felony who is committed to a
state prison or other institution or agency, including commitment to
a county jail pursuant to subdivision (h) of Section 1170, may file a
petition for a certificate of rehabilitation and pardon pursuant to
the provisions of this chapter.
(b) A person convicted of a felony or a person who is convicted of
a misdemeanor violation of any sex offense specified in Section 290,
the accusatory pleading of which has been dismissed pursuant to
Section 1203.4, may file a petition for certificate of rehabilitation
and pardon pursuant to the provisions of this chapter if the
petitioner has not been incarcerated in a prison, jail, detention
facility, or other penal institution or agency since the dismissal of
the accusatory pleading, is not on probation for the commission of
any other felony, and the petitioner presents satisfactory evidence
of five years' residence in this state prior to the filing of the
petition.
(c) This chapter does not apply to persons serving a mandatory
life parole, persons committed under death sentences, persons
convicted of a violation of Section 269, subdivision (c) of Section
286, Section 288, subdivision (c) of Section 288a, Section 288.5,
Section 288.7, or subdivision (j) of Section 289, or persons in
military service.
(d) Notwithstanding any other law, the Governor has the right to
pardon a person convicted of a violation of Section 269, subdivision
(c) of Section 286, Section 288, subdivision (c) of Section 288a,
Section 288.5, Section 288.7, or subdivision (j) of Section 289, if
there are extraordinary circumstances.
(a) The period of rehabilitation commences upon the
discharge of the petitioner from custody due to his or her completion
of the term to which he or she was sentenced or upon his or her
release on parole, postrelease community supervision, mandatory
supervision, or probation, whichever is sooner. For purposes of this
chapter, the period of rehabilitation shall constitute five years'
residence in this state, plus a period of time determined by the
following rules:
(1) An additional four years in the case of a person convicted of
violating Section 187, 209, 219, 4500, or 18755 of this code, or
subdivision (a) of Section 1672 of the Military and Veterans Code, or
of committing any other offense which carries a life sentence.
(2) An additional five years in the case of a person convicted of
committing an offense or attempted offense for which sex offender
registration is required pursuant to Section 290, except that in the
case of a person convicted of a violation of subdivision (b), (c), or
(d) of Section 311.2, or of Section 311.3, 311.10, or 314, an
additional two years.
(3) An additional two years in the case of a person convicted of
committing an offense that is not listed in paragraph (1) or
paragraph (2) and that does not carry a life sentence.
(4) The trial court hearing the application for the certificate of
rehabilitation may, if the defendant was ordered to serve
consecutive sentences, order that the statutory period of
rehabilitation be extended for an additional period of time which
when combined with the time already served will not exceed the period
prescribed by statute for the sum of the maximum penalties for all
the crimes.
(b) Unless and until the period of rehabilitation required by
subdivision (a) has passed, the petitioner shall be ineligible to
file his or her petition for a certificate of rehabilitation with the
court. A certificate of rehabilitation that is issued and under
which the petitioner has not fulfilled the requirements of this
chapter shall be void.
(c) A change of residence within this state does not interrupt the
period of rehabilitation prescribed by this section.
Each person who may initiate the proceedings provided for
in this chapter shall be entitled to receive counsel and assistance
from all rehabilitative agencies, including the adult probation
officer of the county and all state parole officers, and, in the case
of persons under 30 years of age, from the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities.
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.
After the expiration of the minimum period of
rehabilitation applicable to him or her and after the termination of
parole, probation, postrelease supervision, or mandatory supervision,
a person who has complied with the requirements of Section 4852.05
may file in the superior court of the county in which he or she then
resides a petition for ascertainment and declaration of the fact of
his or her rehabilitation and of matters incident thereto, and for a
certificate of rehabilitation under this chapter. A petition shall
not be filed until and unless the petitioner has continuously resided
in this state, after leaving prison or jail, for a period of not
less than five years immediately preceding the date of filing the
petition.
The petitioner shall give notice of the filing of the
petition to the district attorney of the county in which the petition
is filed, to the district attorney of each county in which the
petitioner was convicted of a felony or of a crime the accusatory
pleading of which was dismissed pursuant to Section 1203.4, and to
the office of the Governor, together with notice of the time of the
hearing of the petition, at least 30 days prior to the date set for
such hearing.
During the proceedings upon the petition, the petitioner
may be represented by counsel of his or her own selection. If the
petitioner does not have counsel, he or she shall be represented by
the public defender, if there is one in the county, and if there is
none, by the adult probation officer of the county, or if in the
opinion of the court the petitioner needs counsel, the court shall
assign counsel to represent him or her.
No filing fee nor court fees of any kind shall be required
of a petitioner in proceedings under this chapter.
(a) The court in which the petition is filed may require
testimony as it deems necessary, and the production, for the use of
the court and without expense of any kind to the petitioner, of all
records and reports relating to the petitioner and the crime of which
he or she was convicted, including the following:
(1) The record of the trial.
(2) The report of the probation officer, if any.
(3) The records of the prison, jail, detention facility, or other
penal institution from which the petitioner has been released showing
his or her conduct during the time he or she was there, including
the records of the penal institution, jail, or agency doctor and
psychiatrist.
(4) The records of the parole officer concerning the petitioner if
the petitioner was released on parole, records of the probation
officer concerning the petitioner if the petitioner was released on
postrelease community supervision or mandatory supervision, or the
records of the Department of Corrections and Rehabilitation, Division
of Juvenile Facilities concerning the petitioner if the petitioner
had been committed to that authority.
(5) The written reports or records of any other law enforcement
agency concerning the conduct of the petitioner since the petitioner'
s release on probation, parole, postrelease community supervision, or
mandatory supervision, or discharge from custody.
(b) A person having custody of any of the records described in
subdivision (a) shall make them available for the use of the court in
the proceeding.
A peace officer shall report to the court, upon receiving
a request as provided in Section 4852.1, all known violations of law
committed by the petitioner. Upon receiving satisfactory proof of a
violation the court may deny the petition and determine a new period
of rehabilitation not to exceed the original period of rehabilitation
for the same crime. In that event, before granting the petition, the
court may require the petitioner to fulfill all the requirements
provided to be fulfilled before the granting of the certificate under
the original petition.
(a) In a proceeding for the ascertainment and declaration
of the fact of rehabilitation under this chapter, the court, upon the
filing of the application for petition of rehabilitation, may
request from the district attorney an investigation of the residence
of the petitioner, the criminal record of the petitioner as shown by
the records of the Department of Justice, any representation made to
the court by the applicant, the conduct of the petitioner during the
period of rehabilitation, including all matters mentioned in Section
4852.11, and any other information the court deems necessary in
making its determination. The district attorney shall, upon request
of the court, provide the court with a full and complete report of
the investigations.
(b) In any proceeding for the ascertainment and declaration of the
fact of rehabilitation under this chapter of a person convicted of a
crime the accusatory pleading of which has been dismissed pursuant
to Section 1203.4, the district attorney, upon request of the court,
shall deliver to the court the criminal record of petitioner as shown
by the records of the Department of Justice. The district attorney
may investigate any representation made to the court by petitioner
and may file with the court a report of the investigation including
all matters known to the district attorney relating to the conduct of
the petitioner, the place and duration of residence of the
petitioner during the period of rehabilitation, and all known
violations of law committed by the petitioner.
(a) Except as otherwise provided in subdivision (b), if
after hearing, the court finds that the petitioner has demonstrated
by his or her course of conduct his or her rehabilitation and his or
her fitness to exercise all of the civil and political rights of
citizenship, the court may make an order declaring that the
petitioner has been rehabilitated, and recommending that the Governor
grant a full pardon to the petitioner. This order shall be filed
with the clerk of the court, and shall be known as a certificate of
rehabilitation.
(b) No certificate of rehabilitation shall be granted to a person
convicted of any offense specified in Section 290 if the court
determines that the petitioner presents a continuing threat to minors
of committing any of the offenses specified in Section 290.
(c) A district attorney in either the county where the conviction
was obtained or the county of residence of the recipient of the
certificate of rehabilitation may petition the superior court to
rescind a certificate if it was granted for any offense specified in
Section 290. The petition shall be filed in either the county in
which the person who has received the certificate of rehabilitation
resides or the county in which the conviction was obtained. If the
superior court finds that petitioner has demonstrated by a
preponderance of the evidence that the person who has received the
certificate presents a continuing threat to minors of committing any
of the offenses specified in Section 290, the court shall rescind the
certificate.
The clerk of the court shall immediately transmit
certified copies of the certificate of rehabilitation to the
Governor, to the Board of Parole Hearings and the Department of
Justice, and, in the case of persons twice convicted of a felony, to
the Supreme Court.
Nothing in this chapter shall be construed to abridge or
impair the power or authority conferred by law on any officer, board,
or tribunal to revoke or suspend any right, privilege, or franchise
for any act or omission not involved in his or her conviction, or to
require the reinstatement of the right or privilege to practice or
carry on any profession or occupation the practice or conduct of
which requires the possession or obtaining of a license, permit, or
certificate. Nothing in this chapter shall affect any provision of
Chapter 5 (commencing with Section 2000) of Division 2 of the
Business and Professions Code or the power or authority conferred by
law on the Board of Medical Examiners therein, or the power or
authority conferred by law upon any board that issues a certificate
permitting any person to practice or apply his or her art or
profession on the person of another. Nothing in this chapter shall
affect any provision of Chapter 4 (commencing with Section 6000) of
Division 3 of the Business and Professions Code or the power or
authority in relation to attorneys at law and the practice of the law
in the State of California conferred by law upon or otherwise
possessed by the courts, or the power or authority conferred by law
upon the State Bar of California or any board or committee thereof.
The certified copy of a certificate of rehabilitation
transmitted to the Governor shall constitute an application for a
full pardon upon receipt of which the Governor may, without any
further investigation, issue a pardon to the person named therein,
except that, pursuant to Section 8 of Article V of the Constitution,
the Governor shall not grant a pardon to any person twice convicted
of felony, except upon the written recommendation of a majority of
the judges of the Supreme Court.
Whenever a person is issued a certificate of
rehabilitation or granted a pardon from the Governor under this
chapter, the fact shall be immediately reported to the Department of
Justice by the court, Governor, officer, or governmental agency by
whose official action the certificate is issued or the pardon
granted. The Department of Justice shall immediately record the facts
so reported on the former criminal record of the person, and
transmit those facts to the Federal Bureau of Investigation at
Washington, D.C. When the criminal record is thereafter reported by
the department, it shall also report the fact that the person has
received a certificate of rehabilitation, or pardon, or both.
Whenever a person is granted a full and unconditional pardon by
the Governor, based upon a certificate of rehabilitation, the pardon
shall entitle the person to exercise thereafter all civil and
political rights of citizenship, including, but not limited to: (1)
the right to vote; (2) the right to own, possess, and keep any type
of firearm that may lawfully be owned and possessed by other
citizens; except that this right shall not be restored, and Sections
17800 and 23510 and Chapter 2 (commencing with Section 29800) of
Division 9 of Title 4 of Part 6 shall apply, if the person was ever
convicted of a felony involving the use of a dangerous weapon.
The Board of Parole Hearings shall furnish to the clerk of
the superior court of each county a set of sample forms for a
petition for certificate of rehabilitation and pardon, a notice of
filing of petition for certificate of rehabilitation and pardon, and
a certificate of rehabilitation. The clerk of the court shall have a
sufficient number of these forms printed to meet the needs of the
people of the county, and shall make these forms available at no
charge to persons requesting them.
This chapter shall be construed as providing an
additional, but not an exclusive, procedure for the restoration of
rights and application for pardon. Nothing in this chapter shall be
construed as repealing any other provision of law providing for
restoration of rights or application for pardon.
Every person, other than an individual who is licensed to
practice law in the State of California, pursuant to Article 4
(commencing with Section 6060) of Chapter 4 of Division 3 of the
Business and Professions Code and who is acting in that capacity, who
solicits or accepts any fee, money, or anything of value for his or
her services, or his or her purported services, in representing a
petitioner in any proceeding under this chapter, or in any
application to the Governor for a pardon under this chapter, is
guilty of a misdemeanor.
(a) A person to whom this chapter applies shall, prior to
discharge or release on parole or postrelease community supervision
from a state prison or other state penal institution or agency, or
prior to discharge or release on mandatory supervision from a county
jail, be informed in writing by the official in charge of the place
of confinement of the person's right to petition for, and of the
procedure for filing the petition for and obtaining, a certificate of
rehabilitation and pardon pursuant to this chapter.
(b) Prior to dismissal of the accusatory pleading pursuant to
Section 1203.4, the defendant shall be informed in writing by the
clerk of the court dismissing the accusatory pleading of the
defendant's right, if any, to petition for, and of the procedure for
filing a petition for and obtaining, a certificate of rehabilitation
and pardon pursuant to this chapter.
Except in a case requiring registration pursuant to
Section 290, a trial court hearing an application for a certificate
of rehabilitation before the applicable period of rehabilitation has
elapsed may grant the application if the court, in its discretion,
believes relief serves the interests of justice.