California Petitions to Establish Factual Innocence

Posted over 5 years ago. Applies to California, 6 helpful votes



What Is "Expungement"?

Many states have procedures for "expunging" a conviction. These laws typically allow "cleaning" of a criminal record after successful completion of probation, by technically withdrawing the guilty plea, vacating the conviction and dismissing the complaint. The details vary by jurisdiction, but what few of them do is to actually destroy the criminal records, and public availability of the facts of the conviction after the dismissal will vary widely from state to state.


"What is Factual Innocence"

In California however, there is a second variety of "expungement" relief your lawyer can utilize: a petition for "factual innocence" under Penal Code Section 851.8. As you would imagine, it applies to people who have not been proved guilty or pleaded guilty, and the relief results in a much superior "cleaning" of your record. The arrestee needs to prove to the Court that he or she did not just get the charges dropped due to lack of evidence or the victim asking it be dropped, but that there is actually no evidence upon which a reasonable person would believe he or she was guilty. This process can actually result in the police, Prosecutor, Court, and Attorney General all physically destroying their records of the arrest and charges. It is, understandably, harder to get than simple expungement relief.


Who is eligible?

This relief is available to anyone arrested, but who was not charged with any crime in court; or to a someone who was arrested and charged, but the charge was then dismissed; and also to a defendant who was arrested and charged, but was later found not guilty at trial. This petition can be granted when the expungement lawyer can prove to the judge that the client was actually innocent of the charge, not merely that it was dismissed or an acquittal rendered just because the evidence was inadequate or missing. Obviously, due to the presumption of innocence, many guilty people can be acquitted or have the charges dismissed. That won't be enough for this method of cleaning up your criminal record. You need to hire a lawyer to do this for you, because there are many pitfalls and the law is complicated and even confused in this area.


What is the burden of proof?

The Court won't grant the factual innocence petition unless it finds that "no reasonable cause exists to believe that the arrestee committed the offense". That is significant. It means that if the Prosecutor opposes the petition and introduces incriminating evidence that could have allowed a jury to convict, then the petition should be denied. This may occur if the District Attorney dismissed the case due to inability to get admissible evidence in to court, though he believed strongly that the accused was guilty. Remember, it is not enough that there was a good defense that might have gained an acquittal at trial. Your expungement lawyer must prove that under the current evidence, no reasonable person would think that you were guilty. So you have to help your lawyer gather sworn statements from witnesses and others who know you are innocent, or other evidence that proves it.


What is the benefit?

Once granted though, the factual innocence petition achieves wonderful results. The Judge orders the Attorney General, the police, and the Courts to seal all their records for three years. During this time, people inquiring as to a criminal record will be told that they have no record of any arrest or conviction for that person (as to that offense, anyway). In applications for jobs during this period, you can answer that you have not been arrested on the charge. After the three years expire, those agencies must not just "seal" all the records of the arrest and the offense, but destroy them, including the court order that declares the accused factually innocent. At this point, the arrest "never happened". Not even the police will have any record of it.


Save your copy of the Court Order

This last point can be of critical importance. Because the court order to seal/destroy the criminal records itself will be destroyed as well, you must be careful to obtain several certified copies of the order and put them in a very safe place. The Court will not be able to give you another copy years later when you lose yours. In addition, all of the court indexes and print-outs of past criminal cases will have to delete the mention of your name. You should go to the Court House and check the indexes a couple of months after the destruction of records is supposed to have been done. Alert your lawyer if it has not been done. The State agencies that shared your arrest records with other agencies are ordered to request those other agencies to destroy their copies too. Due to the Federal Government being constitutionally supreme over state governments, a state cannot force the Feds to destroy their mug shots and fingerprint records, but the Feds generally co-operate.


Is a Governor's Pardon better relief?

A person convicted of a crime can also ask the governor for a pardon, but the truth is, even guilty people are pardoned, so the factual innocence petition is the best relief possible. If you are actually innocent, you should not plead guilty just to resolve the case, no matter how lenient the sentence sounds. If you go to trial and are acquitted, the trial judge is in a good position to promptly sign an order declaring you factually innocent. if he or she seems sympathetic.


Stumbling Block # 1

Factual innocence petitions are popular now, probably due to the tight job market. However, even legal professionals are confused about this area. That's because this statute has a couple of glitches in it that can make it hard for an inexperienced party or lawyer. Time is an issue. The petition must be filed no later than two years after the arrest, but this same statute requires you to petition to the police for a factual innocence finding if no court charges were filed. If the police do not respond (and they never do), then you have to wait until sixty days after the running of the statute of limitations to file your petition, which in a felony case is usually three years. So let's review this: you have to file your petition no later than two years after arrest and no sooner than three years and sixty days after arrest. Huh? See an experienced expungement lawyer at the earliest opportunity so that your rights are not lost.


Stumbling Block # 2

Another problem with the factual innocence remedy is that there has been a series of published court cases interpreting and expanding on what the burden of proof is to win these petitions. A published appellate decision carries great weight with the trial judge who hears your motion. There are unfortunately some published cases which erroneously held that the "no reasonable cause to believe the person arrested is guilty" test applies at the moment of arrest. That is dead wrong, but a lot of prosecutors and even judges believe it. Your expungement attorney must know the correct law on this and brief it carefully for the judge and prosecutor so your petition is not thrown out merely because the evidence of your innocence was secured after the police arrested you (which is more often the case than not). This is one reason why, generally speaking, factual innocence petitions require legal counsel. Choose one with a lot of experience with factual innocence petitions.


Factual Innocence after conviction?

Lastly, it sometimes occurs that people are persuaded to plead guilty even though they are not guilty, and years later they learn that there are severe consequences that now will bar them from entering into a chosen profession or job opportunity, or will result in their deportation. In such a case, you are really starting out at a great disadvantage, but it may not be hopeless. Under certain circumstances, it might be possible to have the conviction vacated, even though the time to appeal has expired. You could then fight the criminal charges, and after winning, get the factual innocence order issued and all the arrest records destroyed. For some people it may be worth it to fight that uphill battle.

Additional Resources

For additional information on the Factual Innocence process, you can check out:

Rate this guide

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.


Ask now

31,043 answers this week

3,170 attorneys answering