Factual Innocence Motion & Sealing an Arrest Record

Los Angeles County Sheriff Deputies beat and framed Gabriel Carrillo while he was in custody in 2011. During a routine visit with an inmate, an oral argument took place between visitor Carrillo and the sheriff deputies. Things escalated when the deputies took Carrillo into custody and assaulted him. The deputies claimed that Carrillo had tried to fight them. When photographs showed injuries to Carrillo's hands -- indicating that he was beaten while handcuffed, battery charges against Carrillo were dropped.

Now, 4 years later, Mr. Carrillo was able to get a "factual innocence" motion granted. This goes far beyond an "expungement." Mr. Carrillo will now have his arrest record sealed and destroyed. A Los Angeles Superior Court has ruled that there was no reasonable cause to believe that he committed the offense for which he was arrested.

Individuals who have been convicted of a crime in Los Angeles County will routinely call attorneys about cleaning up their records. It makes sense. In a competitive job market, it is good to have a limited criminal background. Most, if not all, are unaware of the differences between expungements and what Mr. Carrillo had received.

To explain clearly, it is important to start from the beginning. If there is probable cause for an arrest, and a person is arrested, he or she will have an arrest record, meaning that a criminal background check will show that an arrest took place.

A criminal charge is usually then initiated. It is separate from an arrest. Once a criminal charge has been filed, a person's background will note the charge and the result of that charge. It could be a dismissal -- should someone be successful in a motion to suppress, for example, or it could be a conviction. No matter what, however, there will be information available during a background check.

An expungement, as explained in other blog posts, dismisses the conviction. It also gives the formerly convicted person certain rights. It prevents discrimination. An expungement does not get rid of an arrest or charge on a person's criminal history. It simply withdraws the guilty plea and dismisses the case.

A "factual innocence motion" does get rid of a person's criminal history. Pursuant to California Penal Code section 851.8, should a person win a Petition to Seal and Destroy an arrest record, the California Department of Justice will seal the arrest. It will not show up on a criminal background check. After three years, it gets destroyed.

The burden is extremely high for a Petition to Seal and Destroy. Factual innocence must be proven, which is a tough standard. A person must show that there was no "reasonable cause" to believe that a crime was committed. Again, it is difficult.

Nevertheless, it is a good option for individuals like Mr. Carrillo. If you, the reader, family member, or friend are unsure on how to proceed in cleaning up a criminal background, it is best to contact a criminal defense attorney. He or she will likely be able to answer questions that are specific to each person.

Are Felons the Next Protected Class?

According to the National Employment Law Center, a labor-affiliated advocacy group, one-in-four adult Americans in the U.S. have a criminal record. That’s sixty-five million Americans.  It is no surprise that policies are changing regarding whether employers can exclude individuals from employment based solely on a past conviction. That means employers should and are reconsidering blanket criminal background checks on employment applications.

Policy changes are being spearheaded by the Equal Employment Opportunity Commission and the private-sector under the ban-the-box campaign; new laws are appearing across the United States.

First, the EEOC warns private-sector employers that they could expose themselves to substantial liability unless they narrow the use of arrest and criminal convictions when making employment decisions. For example, when a minority applicant is disqualified for a job based on a criminal background check, there is support for a finding of racial discrimination.  Employers are being investigated by the EEOC for blanket criminal background checks even without direct evidence of blatant discrimination.

Second, arrest records, unlike criminal convictions, do not establish criminal culpability. As such, the EEOC says that employers should not use them in hiring decisions. Employers should wait until further into the hiring process before asking about criminal history and should only ask about incidents that are job-related.  Consistent with the EEOC recommendations, several states and local governments have “banned the box,” removing questions about criminal convictions from job applications.

In addition to a “ban on the box”, the EEOC recommends that private-sector employers use individual assessments that consist of multiple factors before making an employment decision based on criminal history.

Regardless of the EEOC’s findings, a Certification of Rehabilitation or Expungement may help with future employment opportunities for those with a criminal history.

Certification of Rehabilitation

A certification of Rehabilitation is a court certified document that declares the person is now obeying laws and demonstrating good moral character. The purpose is to restore rights of citizenship to ex-felons and some misdemeanants who can prove that they are rehabilitated.

To apply for a Certification of Rehabilitation, there are several requirements under Cal Pen Code section 4852.01.

The benefit of a Certification of Rehabilitation is that the person will receive the right to vote and other civil and political rights related to citizenship previously denied. However, a Certification of Rehabilitation does not erase the underlying record of conviction.

Expungement

Expungement is a petition to the court to dismiss a person’s criminal conviction. Generally, to qualify for an expungement in California, a person must be convicted of a misdemeanor and never given probation or the person must have completed their probation.

If convicted of a felony, a person can request an expungement if they have completed probation (where required) and if they were not sentenced to a state prison.

Expungement is beneficial because a criminal conviction will not be accessible by employers or other private-sector entities.