Domenic Lombardo, San Diego Criminal Defense Lawyer
As criminal defense lawyers we are familiar with what are euphemistically known as “collateral consequences.” We know a conviction can harm our clients in myriad unanticipated ways, causing nearly irreversible obstacles to unfettered freedom. Criminal history aggregators, consumer reporting agencies, private investigations, and the internet, all contribute to the perpetual harm suffered by our clients for even a single criminal justice event.
California’s criminal justice model does include rehabilitative provisions such as provisions to seal arrest records, prefiling diversion programs, court diversion programs, and expungements. But short of the elusive Governor’s Pardon, these provisions, standing alone, do not go far enough to redress the harm resulting from having a criminal record.
California has recently adopted legislation that goes a long way to insuring certain arrests and criminal convictions will not be disclosed to parties outside of the criminal justice arena. Importantly, the new laws provide sealing of certain conviction history.
The recently enacted Clean Slate Act attempts to give a meaningful outcome to these rehabilitative measures. The Act, which builds upon other recently enacted California consumer protection laws, will reduce, or eliminate the impact a criminal record will have on our clients.
Persons with a criminal record or strongly advised to seek a criminal defense lawyer for advice on how to seal arrests and convictions.
Criminal Record Relief Provisions
The California Clean Slate Act implements so-called automatic relief by requiring the California Attorney General to mine the official criminal record repository for arrest and conviction records and identify the records of those eligible for relief under the Act. Qualifying arrest records are to be noted with “arrest relief granted.” Qualifying criminal convictions will be dismissed, and the record noted with “relief granted.” The notation will reflect the date of relief and is to be included in all statewide criminal databases with a record of the arrest or conviction. The type of relief provided by the Act is nearly synonymous with relief afforded under existing statutory provisions for sealing arrest records and the various provisions relating to conviction relief.
The automatic relief provisions apply to those arrested or convicted on or after January 1, 2021, and subject to appropriation in the Annual Budget Act. As of this writing, the automatic relief provisions are slated to take effect July 1, 2022, due to appropriations deficits.
Fortunately, the Act supplements existing statutory mechanisms for criminal history relief. A person does not have to wait for the Department of Justice to get around to clearing up their record. The effects of the Act are available to anyone who qualifies regardless of when and how they obtain relief. The effect of the relief afforded by the Act is significant because of how records given relief may be permissibly handled by the DOJ, criminal justice agencies, criminal history aggregators, and consumer reporting agencies, as noted below. For this reason, there is no reason to wait for the DOJ to do the work, the effects of relief under the Act are available now.
The California Department of Justice is the central repository for criminal background information, receiving reports from hundreds of criminal justice agencies throughout the state.
The Act directs the Department of Justice to review the master criminal justice database monthly to identify those individuals eligible for automatic relief under the Act. The Act requires the DOJ to provide electronic notice to the superior court having jurisdiction over the matter informing the court relief was granted and prohibiting the court from disclosing any information concerning the covered arrest or conviction, with certain exceptions.
Arrest Records, PC851.93
An arrest for which relief was granted “is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to the arrest accordingly,” with the usual exceptions relating to peace officer applications, public office, firearms, and the Lottery Commission.
The Act provides for automatic arrest record relief for misdemeanor arrests over one year old with “no indication criminal proceedings have been initiated” or when the arrestee was acquitted of any charges arising out of the arrest.
Felony arrests qualify for relief when the arrest is over three years old and for an offense punishable in the county jail under Penal Code section 1170(d)(h) (1) or (2) with “no indication criminal proceedings have been initiated” or if the arrestee was acquitted of any charges arising out of the arrest.
Arrests for an offense punishable by state prison do not get automatic relief. No matter. The positive effects of arrest record relief may be obtained by any other means within the law, “including but not limited to 851.7, 851.90, 851.91, 1004 and 1009.”
The Act does not limit the prosecuting agency from filing charges based upon the arrest within the statute of limitations.
Diversion Programs, PC851.93
Arrests that resulted in a diversion program are eligible for automatic relief. The enumerated diversion programs include prefiling diversion under section Penal Code section 851.7 and the diversion programs listed in Penal Code section 1000-1000.88 (drug court, deferred entry of judgement, military diversion, bad check diversion, traffic diversion, theft diversion, mental health diversion, LEAD diversion, and primary caregiver diversion).
Conviction Records, PC1203.045
With the Clean Slate Act, California became the first state to afford automatic relief to conviction records.
Sentencing courts “shall advise” a defendant of the Act’s provisions, as well as the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon under Cal. Penal 4852.01 et seq.
Automatic conviction relief is limited to those individuals not required to register as a sex offender, who do not have an active record for local state or federal supervision, where “it does not appear” that the person is currently serving a sentence for any offense, and there is “no indication” of any pending criminal charges.”
A person who has been granted conviction relief “is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to the arrest accordingly,” with exceptions relating to peace officer applications, public office, firearms, Vehicle Code section 13555(d), the Lottery Commission and regulated drug and home care services.
Defendants granted probation for felony and misdemeanor offense are eligible for relief where the disposition date and the term of probation is specified in the department’s records and it “appears” probation was completed without revocation.
Persons not granted probation on misdemeanor and infractions are eligible when the sentence “appears to have been completed” and it “appears” to be one year from the date of sentence.
Be aware that while the automatic relief provisions are triggered by an analysis of what appears in the DOJ’s own records -widely known to be incomplete and inaccurate- there is no corresponding provision in the Act for identifying those who may be eligible for some form of relief but whose criminal history is incomplete or inaccurately reported.1
The relevant prosecutor’s office or probation department may object to automatic conviction relief “no later than ninety days before the date of a person’s eligibility for relief.” The initial burden is on the prosecuting attorney or the probation officer to present evidence “that is material, reliable, and relevant” showing the granting of such relief “would pose a substantial threat to public safety.” If the court finds such a showing has been made, the defendant may rebut the showing by demonstrating the “hardship of not obtaining relief outweighs the threat to the public safety.” The court may consider any relevant evidence in making its determination.
Notably, a person denied automatic conviction relief due to dangerousness is still free under the express provisions of the Act to pursue relief pursuant to Penal Code sections 1203.4 or 1203.4a. Defendants who qualify under these provisions are entitled to relief, while the others may get relief pursuant to the elastic “in the interests of justice” standard. As such, for most matters, objections to automatic relief based upon suitability should not prove to be an obstacle in realizing the effect of the Act.
Effect of the Clean Slate Act
For the first time in California history, Courts are directly prohibited from releasing any criminal record information where relief has been granted. The Act expressly provides “the court shall not disclose information concerning” any relief afforded an arrest, diversion, or conviction, except to the subject of the relief or a criminal justice agency, as defined in PC 851.92. Release of the information to any third parties is a misdemeanor.
Moreover, the Act, when read in conjunction with Penal Code section 11105, continues a string of legislative changes restricting the DOJ from unfettered sharing of information regarding relief records amongst regulatory and government agencies, such as those charged with various responsibilities in areas of employment, public utilities, and housing.
The Act closes a giant loophole, at least with respect to those records held by the courts. Soon, private background checking agencies, criminal data aggregators and consumer record agencies will no longer be able to lawfully obtain criminal record information protected under the Act directly from the Court. An inquiry at the courthouse by a data broker will return a “no record found.”
Of course, criminal history aggregators have been free to harvest criminal history information prior to the enactment of the Act, and they will continue to do so after implementation of the Act, but they report record relief information at their own peril.
Under the “Ban the Box” provisions enacted January 1, 2018, the subject of a previous Flash, employers, with few exceptions, are prohibited from seeking from any source whatsoever, including inquiring of an applicant, information regarding “any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law. . .” Violation of this provision subjects the employer to civil penalties and misdemeanor prosecution. See, Labor Code section 432.7.
Background checking companies are similarly liable for the reporting of prohibited criminal record information insofar as they are construed to be agents of the protected consumers. See, Government Code section 12952(a)(3), and 12926(d) (including in the definition of “employer” “any person acting as an agent of an employer, directly or indirectly”). Persons who report prohibited information are subject to criminal penalties and civil damages, including punitive damages for willful conduct (Government Code section 12952; Labor Code section 437).
For those individuals amongst the 300 occupations subject to professional license oversight by the Department of Consumer Affairs, Business and Profession code section 480 provides, subject to certain exceptions, “Notwithstanding any other provision of this code, a person shall not be denied a license on the basis of any conviction, or on the basis of the acts underlying the conviction, that has been dismissed pursuant to section 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.425 of the Penal Code, or a comparable dismissal or expungement.” Nor may a Board “deny a license on the basis of an arrest that resulted in a disposition other than a conviction, including an arrest that resulted in an infraction, citation, or a juvenile adjudication.”
For more information on consumer protections relating to criminal record relief, see the Consumer Reporting Agencies Act (ICRAA), Civil Code sections, 1786 et seq.; Consumer Credit Reporting Agencies Act (CCRAA), Civil Code sections 1785.1 et.seq.; Fair Credit Reporting Act (FCRA), 15 U.S.C.1681 et.seq.
Lastly, anyone who obtains any criminal record relief should educate themselves on how and when they are entitled to obtain copies of criminal record information held by third parties, and where appropriate, they should proactively notice these third parties of the relief obtained and remind them of the liability they face where they fail to excise such information from their records. The Consumer Financial Protection Bureau provides an extremely useful publication for dealing with consumer reporting agencies. The Privacy Rights Clearinghouse lists 21 criminal data aggregators.
The recently evolving, favorable restrictions on the disclosure of protected criminal relief information is beginning to approximate meaningful criminal record relief for our clients. While automatic relief is coming, now is the time to file motions for criminal record relief under existing statutory provisions to obtain the benefits of restricted disclosure and to establish a legal basis for recourse against those who seek to use our client’s protected criminal record information against them. 2