California Pardon Information

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Authority

Article V, Section 8, of the California Constitution gives the Governor the power to “grant a reprieve, pardon, and commutation, after sentence, except in cases of impeachment.”[1]For first-time offenders, this power resides in the Governor exclusively; for those convicted of multiple felonies, the Governor must get a recommendation from the California Supreme Court before he can grant the person a pardon.

The Governor can place any conditions on a pardon as he deems proper.[2] Every year, the Governor must report to the Legislature every pardon he granted the previous year, including the facts of each case and the reasons for why he granted the pardon.[2]

There is a body called the Board of Prison Terms which assists the Governor in investigating all pardon applications and making recommendations to him. The Board is made up of nine members who are appointed by the Governor and serve four-year terms.

Because the focus of this site is on pardons, we do not discuss reprieves, commutations, paroles or other types of clemency that may be available in California. We also do not discuss judicial alternatives such as record expungement, record sealing, setting aside or dismissal of convictions. You should talk to an attorney if you think any of these alternative options may be more appropriate for you.


Eligibility

Absent extraordinary circumstances, a pardon is only granted after you have led an exemplary, law-abiding lifestyle for at least 10 years following your release from probation or parole.[3] This means not having any arrest or convictions during that 10-year period.[3]Keep in mind that this 10-year waiting period is an informal rule of current Governor Arnold Schwarzenegger; it can change from one Governor to the next.

An example of “extraordinary circumstances” might be newly discovered evidence (for example, DNA evidence) indicating that you are innocent of the crime you were convicted of. Another example might be you are facing imminent deportation for a minor crime you committed years ago and, because of the urgency of the situation, cannot wait for the 10-year period to be over.

If you have been convicted of at least 2 felonies, the Governor can grant you a pardon only after a majority of the justices of the California Supreme Court (meaning four out of the seven) recommends you for a pardon.

Pardons are generally only granted for felony convictions, although certain misdemeanors are also eligible. If you are unsure of whether you are eligible to apply, the rule of thumb is you should go ahead and apply; there is no harm in doing so.

You can only ask for a pardon for a California state conviction.[4] If you want a pardon for a federal conviction, you must do that through the United States Department of Justice, Office of the Pardon Attorney (see our page on this site on federal pardons). If you want to pardon for an out-of-state conviction, you should find the appropriate page on this site dealing with pardons in that particular state.

There are no fees for applying for a pardon in California. However, as you will see below, applying for a pardon in California can be rather complicated because, depending on your circumstances, there may be multiple steps you need to go through before you can receive a pardon.

What is your chance of receiving a pardon? This mostly depends on your individual circumstances. Naturally, the older and less serious your conviction(s) are, and the more compelling your life story is, the higher your chance of getting a pardon.

Your chance of getting a pardon can also depend on who is serving as Governor at the time your application is reviewed; some Governors are more lenient than others in handing out pardons. For example, Governor Gary Davis granted zero pardons during his tenure; Governor Pete Wilson granted 13 pardons; Governor George Deukmejian granted 328 pardons; Governor Jerry Brown granted 403 pardons; and Governor Ronald Reagan granted 575 pardons.[5] As of 2005, Governor Arnold Schwarzenegger has not granted any pardons since he took office in 2003.[5] In 2012, 128 pardons were granted.[6]

The Application Process

There are 2 procedures through which you can obtain a pardon in California. The first, more commonly used procedure is by first applying for a “certificate of rehabilitation” from the superior court where you currently reside. If the court grants you a certificate of rehabilitation, it simply means the court has found you rehabilitated and worthy of a Governor’s pardon. The certificate of rehabilitation acts as a recommendation from the court to the Governor to grant you a pardon. However, the certificate of rehabilitation does not guarantee that you will receive a pardon.

The second procedure is often referred to as the direct application (or traditional application). Here, instead of first getting a certificate of rehabilitation, you apply directly to the Governor for the pardon (basically skipping the certificate of rehabilitation stage). If you have been convicted of at least two felonies, you must use this procedure and apply directly to the Governor.[7]

Regardless of which route you take, the decision to grant or deny your application ultimately rests with the Governor.ref name="Ansell">See People v. Ansell, 24 P.3d 1174 (Cal. 2001)(“[R]egardless of which statutory application procedure is used, and notwithstanding any recommendation by the superior court, the pardon decision is discretionary, and rests ultimately with the Governor.”)(citations omitted).</ref>


I. Certificate of Rehabilitation

You apply for a certificate of rehabilitation with the superior court in the county where you reside.[8] This will involve submitting a formal petition to the court detailing the circumstances of your case, in order to demonstrate that you have satisfied the requirements below (whichever one applies to you). There will not be any filing or other court fees for applying for a certificate of rehabilitation.

  1. You are eligible to apply if:
    • You were convicted of a felony, and
    • You were sent to prison or other state penal institution for that felony; and
    • You were discharged or released on parole before May 13, 1943, and
    • You have not been incarcerated in any state prison or penal institution since you were discharged/released.
  2. You are eligible to apply if:
    • You were in prison on May 13, 1943 for a felony conviction or were convicted of a felony any time after that date for which you were sent to any state prison or penal institution, and
    • You have been discharged from prison or released on parole.
  3. You are eligible to apply if:
    • You were convicted of a felony or a misdemeanor sex offense for which you were not sent to prison, and
    • Your conviction has been dismissed under Penal Code section 1203.4, and
    • You have not been incarcerated in any prison, jail, detention facility, penal institution or agency of any kind since the conviction was dismissed, and
    • You are not currently on probation for committing any other felony.
  4. You are not eligible to apply if:

If you are eligible under number 1, 2, or 3 above, there are additional requirements you must satisfy. First, you must demonstrate that you have been residing in California for a minimum number of years ever since you completed your sentence; this is called the “period of rehabilitation” and it can range anywhere from 7 to 10 years (in some cases, even longer), depending on your offense; however, if you are eligible under option number 1 above, the “period of rehabilitation” rule does not apply to you. Another requirement is you must demonstrate that you have lived an honest, upright, and law-abiding life during your period of rehabilitation.[9] This requirement applies to everyone.

As you can see, depending on your circumstances, the rules can be complicated and the court procedure can be rather formal and adversarial. For instance, if you fall under option number 3 above, you will need to first have your conviction dismissed under Penal Code section 1203.4, which is an entirely separate court procedure of its own (and which you should retain an attorney to help you with).

You can obtain information and forms for a certificate of rehabilitation from the court clerk’s office, the probation department, or the public defender’s officer in the county where you reside. By law, you are entitled to assistance with your petition from the county probation office, the state parole office, and (if you are under 30) the California Youth Authority. Furthermore, if you do not have an attorney, you will receive a court-appointed attorney to represent you if you desire.[10]

As part of your petition, you will be expected to notify the district attorney in the county where you reside, the district attorney in each county where you have received a felony conviction, and the Governor’s office at least 30 days before the hearing on the petition.[11]In the notice, you will need to list all of the convictions for which you are requesting a certificate of rehabilitation.

After your petition is filed with the court, it will schedule a hearing. At the hearing, the court may hear testimony and obtain other evidence pertaining to you (the petitioner), the crimes you are seeking a pardon for, your conduct while you were incarcerated, and any other relevant evidence it may need in order to make its decision.

If, after the hearing, the court finds that you are sufficiently rehabilitated, it will issue you a certificate of rehabilitation.[12] The court will also forward the certificate over to the Governor.[13]The certificate will act as an official application for a pardon; it will essentially be the court’s recommendation to the Governor that you should receive a pardon.[12] Again, however, the certificate of rehabilitation is no guarantee that you will receive a pardon; the Governor can still deny you a pardon.[3]

Once the Governor’s office receives the certificate of rehabilitation (i.e. the pardon application), he can either grant you a pardon based on the certificate alone or send your application over to a body called the Board of Prison Terms to conduct an investigation.[14] As a matter of practice, the Governor generally sends all applications over to the Board for investigation.

As part of its investigation, the Board may contact the prosecutor, the trial judge, law enforcement officials/agencies who were involved in the case, as well as other persons who may have relevant information about you.[15] The Board may ask these individuals for their opinions/recommendations on your application.[16]

The Board will also examine the court proceedings pertaining to the case you are seeking a pardon for.[16] The Board may also hold hearings and examine witnesses under oath.[16]You should be upfront and cooperative with the Board, the Governor’s office, and their agents at all times. If a hearing is held, you should not only attend but also look and act your best. Dress in the same way you would if you were going to court for a trial.

Have friends, family members, neighbors, and others in your community attend the hearing to show their support and possibly even be a witness for you. The hearing would be an excellent opportunity for you to put a human face onto your application; it lets the Board see not only you in person but also the amount of support you have in your community.

Once the Board has completed its investigation and conducted the hearing, if any, it will make a recommendation and then send the application over to the Governor. The Governor then has the final say on whether or not you receive a pardon.

Keep in mind that even if you do not ultimately receive a pardon, the certificate of rehabilitation alone has its own benefits. Among other things, the certificate goes on your criminal record and lets the public know that a court has essentially found you to be a productive, law-abiding individual again.[17] This helps open up licensing and employment opportunities for you.


II. Direct Application

The direct application route (also called “traditional application” route) is for those who are not eligible to apply for a certificate of rehabilitation. This often includes those who do not currently reside in California and those who only have a misdemeanor conviction.

If you have been convicted of two or more felonies, you will also need to use the direct application route. [18]In fact, in situations where you have been convicted of 2 or more felonies, the Governor is required to send your petition over to the California Supreme Court for a recommendation, and can only grant you a pardon if a majority (at least four out seven) of the justices of the Supreme Court recommends you for a pardon.[19]

In order to apply through the direct application route, you must contact the Governor’s office directly to have the materials sent to you. You can call the Governor’s office at 916-445-1841, or write/fax to:

Governor’s Office
State Capitol
Attention: Legal Affairs Secretary
Sacramento, CA 95814
Fax: 916-445-4633

You can take a peek at what the application looks like on the Criminal Justice Policy Foundation’s website at http://cjpf.org/clemency/California.html. This must be used as a preview only. If you do not obtain an application directly from the Governor’s office, your application may be rejected.

The direct application form is rather simple and self-explanatory. Among other things, the application will ask you to provide information about your convictions. If you do not have sufficient information about all of your convictions, you can obtain this information from the clerk’s office of the court where you were convicted.

If you have convictions in other states, you can obtain a more comprehensive, nationwide criminal report for yourself from the FBI. You can find out how to do this by calling the FBI’s headquarters in Washington, D.C., a (202) 324-3000, or logging onto its website at http://www.fbi.gov. The FBI’s website also has a list of local FBI offices you can call.

In the alternative, you can contact the criminal history record repository (which keeps a record of all criminal activity in a state) in each state where you have arrests/convictions. Listed on Criminal History Record Repositories is a list of criminal history record repositories for all 50 states.

In addition to the application, you must serve a signed Notice of Intention to Apply for Executive Clemency on the district attorney in the county where you were convicted.[20] You will then be required to provide the Governor’s office proof in the form of an affidavit that that you have served the district attorney.[20]

When you request your pardon application materials from the Governor’s office above, they will send you a standardized Notice of Intention to Apply for Executive Clemency form. You can also obtain the form from the Criminal Justice Policy Foundation’s website at http://cjpf.org/clemency/California.html.

It is a good idea to have friends, family members, a neighbor, your pastor, a past or present employer, and others in your community write letters of recommendation for you and have them submitted along with your application. It is better to choose individuals who are not related to you, to avoid the appearance of bias.

Although not required, we highly recommend that you submit a detailed personal statement explaining why you would like a pardon. Simply saying you want a clean criminal record again is not enough. Explain to the Governor how it would benefit you and/or your family—for example, it would open up more job opportunities for you, help you avoid deportation/separation from your family, help you obtain a professional license, etc.

Also indicate on your personal statement all the positive things that have occurred in your life since you received your last conviction—for example, educational achievements, new or stable employment, marriage and children, community involvement, charitable services or donations, law-abiding behavior, etc. Submit copies of your college transcript, high school diploma or GED, military certificates, marriage certificate, honors and awards, and other evidence of your rehabilitation.

In writing your personal statement, keep in mind that the Governor is not retrying you for the offense. Although you may want to explain the facts of the crime from your perspective, avoid trying to make excuses for your crime and argue away your guilt. The Governor is probably more interested in seeing your remorse for the crime, and your understanding of its effects on the victim and society, than anything else.

Make sure you keep a copy of everything you send for your records. Your direct application will need to be notarized (signed in front of a notary public) and returned to the Governor’s office at the above address. Keep a copy of everything you send for your records.

Once the Governor’s office has received your application materials, your application will be sent over to the Board of Prison Terms to conduct an investigation and make a recommendation to the Governor.[21] As part of its investigation, the Board will examine the court proceedings pertaining to the case you are seeking a pardon for.[21] The Board may also hold hearings and examine witnesses under oath.[21]

You should be upfront and cooperative with the Board, the Governor’s office, and their agents at all times. If a hearing is held, you should not only attend but also look and act your best. Dress in the same way you would if you were going to court for a trial.

Have friends, family members, neighbors, and others in your community attend the hearing to show their support and possibly even be a witness for you. The hearing would be an excellent opportunity for you to put a human face onto your application; it lets the Board see not only you in person but also the amount of support you have in your community.

As part of its investigation, the Board may also contact the prosecutor, the trial judge, law enforcement officials/agencies who were involved in the case, as well as other persons who may have relevant information about you.[15] The Board may ask these individuals for their opinions/recommendations on your application. [16] These individuals may also be invited to attend the hearing if one is held.

Once the Board has completed its investigation and conducted the hearing, if any, it will make a recommendation and then send the application over to the Governor. Again, if you have been convicted of 2 or more felonies which occurred in separate incidences, your application will be sent to the Supreme Court for their recommendation before it is sent to the Governor. In any event, the Governor has the final say on your pardon application.

The Effects

The pardon will not seal, erase, or expunge your conviction from your criminal record.[22]The pardon merely forgives you of the crime, restores civil rights which you have may lost because of the conviction, and helps you with licensing and employment opportunities.

Because you are still technically “convicted” even after you receive a pardon, you cannot legally deny that you were convicted of the crime.[3] Furthermore, the conviction can still be used to enhance your sentence for any future convictions you might receive, [23] unless you receive a pardon on the ground that you were innocent of the crime (in which case it cannot be counted against you in any future court proceeding[24]).

The pardon will be a public record and your criminal record will be changed to reflect that you have been pardoned of that particular crime. [25] If you are ever concerned that your conviction may be a problem when you apply for a job, housing, a trade or occupational license, you may want to send a copy of the pardon to the employer, landlord, or licensing agency.

A pardon is, after all, a strong official statement from the highest executive officer of the State forgiving you of the crime and essentially declaring you a good person again. Most employers and licensing agencies, and perhaps most landlords, will probably ignore your conviction if they know you have received a pardon for it, especially if the crime you committed is not substantially related to the business or profession you want to enter. Nonetheless, there is no law that absolutely prohibits licensing agencies (such as the State Bar of California, which licenses attorneys) from considering your conviction in their decisions.[26]


If you are granted a full, unconditional pardon after first receiving a certificate of rehabilitation from a court (see above), the pardon will restore many of your core civil rights, including, but not limited to, your rights to vote, to serve on a jury, and to possess a gun. [5] However, if you were convicted of a crime that involved the use of a dangerous weapon, the pardon will not restore your gun rights.[3]


Under federal law, if you have received a pardon from any state, the pardoned conviction cannot be used by federal authorities to prosecute you for “unlawful possession of a firearm” under federal law, unless the pardon specifically says you cannot possess a gun.[27] However, just because you cannot be prosecuted under federal law does not mean you cannot be prosecuted under State law. Some states have stricter gun laws than federal law. If regaining your gun rights is important to you, make sure you make you desire known during the application process.

Keep in mind that many of those rights—such as your right to vote, to serve on a jury, to hold public office, and even to possess a gun—may have already been restored at the time you completed your sentence, or may be restored through some procedure other than a pardon. You may want to talk to an attorney to explore those alternative options. A pardon is, after all, extremely difficult to get.

If you have been registering as a sex offender, a full pardon for that conviction will release you of the duty to continue registering as a sex offender.[28] Of course, if you have other convictions that require you to register and that have not been pardoned, you will have to continue registering. Furthermore, this is no guarantee that you will not be required to register again when you move to another state even if the pardon released you from registering in California. The effects of a pardon depend on the laws of each individual state.

If you are granted a pardon on the ground that you were innocent of the crime (for example, DNA evidence clears you of the crime), you may also be entitled to compensation from the State for having wrongfully convicted and imprisoned you.[29] There is a very short period after you were discharged or acquitted to file your claim.[30] Therefore, it is probably a good idea to talk to an attorney right away if you think you qualify.

Recall we stated above that a pardon does not remove your conviction from your criminal record. There is an alternative process in California for you to petition a court to dismiss your conviction, which would prevent the general public from accessing your records for that conviction, and which would allow you to (with a few exceptions) deny that you were ever convicted of that particular offense.

That judicial process is done through sections 1203.4 and 1203.4a of the Penal Code. It is only available to those (felons or misdemeanants) who were given probation for their offense, and to misdemeanants who did not receive probation for their offense. Getting a dismissal under this process is much easier than getting a certificate of rehabilitation or a pardon; however, the benefits are more limited and not everyone qualifies. You should talk to an attorney if you are interested.

Finally, in most cases the federal government cannot rely solely on a conviction that has been pardoned for purposes of deporting you from the country. If immigration is not an issue with you, then obviously this is of no use to you.

External Links

References

  1. See also Cal. Penal Code 4800.
  2. 2.0 2.1 Cal. Const. art. V, § 8.
  3. 3.0 3.1 3.2 3.3 3.4 How to Apply for a Pardon, State of California, Office of the Governor (2008), http://gov.ca.gov/pdf/interact/how_to_apply_for_a_pardon.pdf
  4. The Sentencing Project, California, Margaret Colgate Love, http://www.sentencingproject.org/tmp/File/Collateral%20Consequences/California.pdf; see also People v. Laino, 87 P.3d 27 (Cal. 2004)(“‘Crimes and offences against the laws of any state can only be defined, prosecuted, and pardoned by the sovereign authority of that State; and the authorities, legislative, executive or judicial, of other States take no action with regard to them, except by way of extradition to surrender offenders to the State whose laws they have violated, and whose peace they have broken.’”)(quoting Huntington v. Attrill, 146 U.S. 657, 669 (1982).
  5. 5.0 5.1 5.2 The Sentencing Project, California, Margaret Colgate Love, http://www.sentencingproject.org/tmp/File/Collateral%20Consequences/California.pdf
  6. http://articles.latimes.com/2013/feb/02/local/la-me-brown-pardons-20130202
  7. Cal. Penal Code § 4802
  8. Cal. Penal Code § 4802.06.
  9. Cal. Penal Code § 4852.05; see also People v. Failla, 140 Cal.App.4th 1514 (Ct. App. 2006)(‚ÄúTo obtain the rehabilitation certificate, the statute requires that during the rehabilitation period ‚Äò[t]he person shall live an honest and upright life, shall conduct himself . . . with sobriety and industry, and shall conform to and obey the laws of the land.‚Äô‚Äù)(quoting Cal. Penal Code. § 4852.05).
  10. How to Apply for a Pardon, State of California, Office of the Governor (2008), http://gov.ca.gov/pdf/interact/how_to_apply_for_a_pardon.pdf; see also Cal. Penal Code §§ 4852.04 and 4852.08.
  11. Cal. Penal Code § 4852.07.
  12. 12.0 12.1 Cal. Penal Code § 4852.13.
  13. Cal. Penal Code § 4852.14.
  14. How to Apply for a Pardon, State of California, Office of the Governor (2008), http://gov.ca.gov/pdf/interact/how_to_apply_for_a_pardon.pdf ; see also Cal. Penal Code § 4852.16.
  15. 15.0 15.1 How to Apply for a Pardon, State of California, Office of the Governor (2008), http://gov.ca.gov/pdf/interact/how_to_apply_for_a_pardon.pdf ; see also Cal. Penal Code § 4803.
  16. 16.0 16.1 16.2 16.3 Cal. Penal Code § 4803.
  17. Cal. Penal Code § 4852.17.
  18. Cal. Penal Code § 4802.
  19. Cal. Penal Code § 4852.
  20. 20.0 20.1 Cal. Penal Code § 4804.
  21. 21.0 21.1 21.2 Cal. Penal Code § 4812.
  22. How to Apply for a Pardon, State of California, Office of the Governor (2008), http://gov.ca.gov/pdf/interact/how_to_apply_for_a_pardon.pdf.; see also Cal. Penal Code § 4852.17; People v. Flores, 92 Cal.App.3d 461 (Ct. App. 1979)(‚ÄúThe essence of pardon is forgiveness; it thus implies guilt.‚Äù).
  23. How to Apply for a Pardon, State of California, Office of the Governor (2008), http://gov.ca.gov/pdf/interact/how_to_apply_for_a_pardon.pdf; see also People v. Laino, 87 P.3d 27 (Cal. 2004)(“[We have] rejected the argument that the full faith and credit clause prevented the use of an out-of-state prior conviction to enhance the defendant’s sentence after the defendant had been pardoned for that offense.”)(citing People v. Dutton, 9 Cal.2d 505 (Cal. 1937)).
  24. Cal. Penal Code § 3045.
  25. Cal. Penal Code § 3045. (‚ÄúWhen a pardon is granted, the California Department of Justice and the Federal Bureau of Investigation are notified so that they may update their records on the applicant. The pardon is filed with the Secretary of State, reported to the Legislature, and is a public record.‚Äù).
  26. Cal. Penal Code §§ 4852.15 and 4853; The Sentencing Project, California, Margaret Colgate Love, http://www.sentencingproject.org/tmp/File/Collateral%20Consequences/California.pdf.
  27. 18 U.S.C. 921(a)(20) & (33).
  28. Cal. Penal Code § 290.5.
  29. Cal. Penal Code § 4900.
  30. Cal. Penal Code § 4901.
RecordGone See http://www.recordgone.com/California/ for more information and options for record sealing and expungement