Penal Codes

Do you have a record? Do you know what is on your record? What you don’t know may be holding back your true potential. Whether your personal record has significant convictions or no charge or not guilty arrests, you may have learned the hard way that any mark on your background can have a negative impact on your job, housing, and financial opportunities.

The good news is that the State of California offers ways to clean your record, and our team at Record Expungement Attorney can help you do that. Of course, with any legal situation, navigating and understanding the laws that govern criminal activity – which may be on your record – can be confusing. In this article, we will help you understand the various Penal Codes in the State of California as well as ways you may be able to clean or clear your record

This article is informational in nature only. It may not be used as legal advice, as only a lawyer with specific knowledge of your case can provide that.

WHAT IS A PENAL CODE? 

Penal code is the general term for any set of laws that have to do with crimes and offenses, as well as the punishment related to them. The State of California has many times of laws that govern a variety of topics, from civil, elections, labor, and military and veterans’ laws to more advanced topics such as family relations, revenue and taxation, insurance, and, of course, crime and punishment.

Today, the California Penal Code is divided into six sections, which are further broken down into titles, chapters and/or sections. The six sections include the following:

• Part 1: Definitions of legal terms, as well as crimes against the state itself (such as treason), crimes against the state courts (such as perjury), and crimes that violate the community and the public at large, such as crimes against public peace or health and safety.

• Part 2: Laws that govern the state’s criminal justice and procedure system.

• Part 3: Laws that govern the state’s correctional system, including jails, prisons, and the illegality of the death penalty.

• Part 4: Laws that govern police training, criminal investigations, and crime and gun control and prevention.

• Part 5: The establishment of the California Peace Officers Memorial Foundations and a memorial at the California State Capitol.

• Part 6: Laws that govern the management of weapons.

The California Penal Code directly defines and makes illegal hundreds of actions, including murder and manslaughter, robbery, kidnapping, assault, battery, theft of many types, rape, crimes related to children, including molestation, abduction, and pornography. Interestingly, drug crimes are made illegal not by the penal code but by the California Health and Safety Code. 

RECORD CLEARING IN CALIFORNIA

California offers a few ways of clearing your record of an arrest or a conviction, whether a felony, misdemeanor, or infraction. Importantly, any recording clearing, including expungement and sealing of records, can only apply to convictions that you obtained within the state. This means that if you were convicted in another state, within the military, or by the federal government, a California expungement does not apply and does not have jurisdiction. Non-California expungements may be available to you, but they likely have different rules, expectations, and benefits.

LAWS THAT GOVERN EXPUNGEMENT IN CALIFORNIA

There are several laws and penal codes that rule record expungement in California. The following sections outline the most commonly used codes. 

CALIFORNIA PENAL CODE SECTION 1203.4

A dismissal that falls under California Penal Code section 1203.4 is a frequently sought action. The penal law applies to people who have been convicted of a crime and are seeking to have it dismissed, as a post-conviction action. Such people are known as defendants within the legal setting.

Importantly, these convictions are crimes – misdemeanor or more severe felonies. The dismissal of infractions, lesser actions, are not included within this dismissal action.

In order to be eligible for such a dismissal, one of the following conditions must be met:

• The defendant has completed any and all conditions of probation the court set out, for the whole probationary period.

• The defendant has been discharged from some of the probation period prior to its specified ending.

• The court has determined that in its discretion and the interest of justice, the defendant is relieved from his probation period.

The defendant may then seek a dismissal of the conviction at any time after one of the above conditions is met, as long as the defendant is not serving a sentence or probation for any other offense or is not currently charged with a separate offense.

In this instance, the court may allow the defendant to withdraw the previously entered plea of not guilty or nolo contendere (no contest). If the defendant’s previously entered plea was that of not guilty, the defendant need not change anything. In either situation, the court can then choose to set aside the guilty verdict, which dismisses the conviction.

The court then informs the defendant of the dismissal of the accusations as well as the penalties and disabilities that resulted from the previous conviction. This information, included in the defendant’s probation papers, will also list whether the defendant has any right or privilege to petition for a certificate of rehabilitation and pardon, which is discussed below. The probation papers also indicate formally that the defendant does not need to disclose this conviction and dismissal to any potential employers or other situations, with the following exceptions:

• Applying for public office

• Applying for, updating, or renewing an existing state license or certification

• Contracting with the California State Lottery Commission

This law also indicates that certain rights are restored to a defendant upon dismissal of a conviction, but that certain rights are not restored immediately. The following exceptions apply:

• The dismissal does not allow the defendant to own, use, or otherwise possess a firearm any sooner than the conviction’s probation or sentence would allow.

• Pursuant to California’s Vehicle Code section 13555, if the conviction included a suspension or revocation of his or her driver’s license, the dismissal does not allow the defendant to receive the privilege to drive any sooner than the conviction’s probation or sentence would allow.

• The dismissal does not allow the defendant to hold public office any sooner than the conviction’s probation or sentence would allow. 

If the defendant’s crime was a misdemeanor, the court can simply set aside the guilty verdict. If the defendant had a felony conviction, the defendant must first

CONVICTIONS THAT ARE NOT ELIGIBLE FOR DISMISSAL

California Penal Code section 1203.4 does make some exceptions. While many types of convictions can be eligible for dismissal or expungement, certain offenses are not eligible for this action. These convictions do not involve state prison sentences, but are still eligible for dismissal:

• Penal Code section 286(c), which is the act of sodomy with a child, determined as any person under 14 years old and more than 10 years younger than the defendant.

• Penal Code section 288, which is the willful act of lewd or lascivious behavior with a child under the age of 14.

• Penal Code section 288a(c), which is the willful act of lewd, lascivious, or otherwise inappropriate behavior with a child aged 14 or 15, who is at least 10 years younger than the defendant.

• Penal Code section 288.5, which is the willful act of engaging in significant sexual conduct with a child aged 14 or under. The defendant either resides in the same home as the child or has repeated access. Substantial sexual conduct includes a variety of lewd behavior and this law requires such acts occur three or more times.

• Penal Code section 289(j), which is the will act of forcible penetrating a child aged 14 or under using a foreign object.

• Vehicle Code section 42002.1, which is the misdemeanor violation of Section 2800, 2801, or 2803, which makes illegal a failure to stop and allow the inspection of a vehicle or for such unsafe conditions that endangered a person.

OTHER CALIFORNIA LAWS THAT PROTECT YOUR CRIMINAL RECORD

Though a law related to work, and not directly to crimes, California Labor Code section 432.7 actually has a significant impact on people with convictions on their record. This law applies to convictions including pleas, verdicts, and actual findings of guilt.

This law says that it is illegal for a potential employer to ask a job applicant whether the person has been arrested or otherwise detained, unless that arrest or detainment ended in a conviction. This also applies to diversion programs, so that if you successfully completed one, the employer cannot request information.

This labor law also protects those who are currently employed by a company. The law holds that an employer, both potential and current, cannot search for any arrest record that did not result in a conviction. This applies to any source, not only public records, so if a potential employer performs an online search for news related to a non-conviction action, such as arrest, it is illegal. The potential employer also cannot use this information, however obtained, as a consideration in determining whether to hire, promote, fire, or otherwise treat that person.

Importantly, though, this law also explains the situations wherein an employer can ask about a situation. For instance, an employer is allowed to ask a current employee or job applicant about an arrest on which the person is on bail or released on his own due to an upcoming trial.

CERTIFICATES OF REHABILITATION AND PARDON 

Once a court has opted to set aside a guilty conviction of a crime, you could be eligible for a certificate of rehabilitation and perhaps even a formal pardon from the governor. Often known as COR, this court order can declare a person who had a previous criminal conviction officially rehabilitated, which returns your right to vote and legally allows you to respond that do not have a record of conviction on employment, housing, and similar applications.

Once you are convicted of a crime in California, a court may declare that you have been rehabilitated. If so, the court will issue a formal certificate of rehabilitation, which declares this sentiment and also recommends to the governor that you be granted a full pardon of the crime. California Penal Code section 4852.13(a) governs certificates of rehabilitation and pardons.

The court shares this rehabilitation certificate with the governor, as an application for your pardon. The governor has no obligation to pardon a criminal. However, should the governor choose to pardon you, you earn particular benefits, including:

• The civil rights of a citizen of California

• The political rights of a citizen of California, including the right to vote

• In some instances, the right to own a legal firearm

A COR does not erase the conviction of a felony or seal your criminal record. Future convictions are able to consider this prior conviction to determine sentencing and three-strike applicability. You could be eligible for a COR if you have resided in California for at least five years, and if you meet one of the following conditions:

• You are a convicted felon who is committed in state prison or otherwise under the authority of the State of California’s Department of Corrections and Rehabilitation

• You are convicted of a felony or a misdemeanor in violation of any sex offense (as outlined in Penal Code section 290 and that has not been dismissed), as long as the following are met:

  • You have not been imprisoned since the date of your expungement

  • You are not on probation for committing a felony

  • You prove you have lived in California for five years prior to your filing for this petition

Importantly, you are ineligible for a certificate of rehabilitation if any one of the following conditions applies to you:

• You are on mandatory life parole

• You have a death sentence

• You are in the military

• You are convicted of violating specific California Penal Code sections, unless in the case of extraordinary circumstances

• You are not a resident of California

At Record Expungement Attorney, we work with people across Riverside County and beyond to clear their records. Ready to start clearing your record to improve your life? Get in touch with us at 951-916-9248. We can help you understand the laws involved in your case and what actions you may be able to pursue.