Petitioning for Factual Innocence

By Brian Dinday

High unemployment rates and a faltering economy tend to make workers with arrest records nervous: That kind of a blot can only make job hunting more difficult. Not surprisingly, more and more people are asking criminal defense lawyers to get their records sealed. California has a variety of statutory remedies, such as Penal Code sections 530.6 (factual innocence for victims of identity theft), 851.90 (sealing records after a defendant completes a drug diversion program), and 1203.4 (withdrawing a plea after probation is completed). But the broadest protection comes from Penal Code section 851.8, which provides for a petition for factual innocence (PFI). The court can grant a PFI for any arrest that did not result in a conviction. (See Cal. Penal Code § 851.8.)

A judge who grants a PFI will order that all arrest and prosecution records be sealed. This seal holds until three years from the date of the arrest, at which time all the related records will be destroyed, including the petition itself, the PFI order, arrest records, state Department of Justice records, and those of any other agency that received information of the arrest (for example, the local police department). Put succinctly, an order granting a PFI wipes the slate clean.

It Never Happened
A successful PFI is a godsend to someone who has been wrongfully arrested. And for anyone who may have been properly apprehended but was later acquitted of the charges, a PFI provides something the jury's verdict cannot: a finding of factual innocence. (Remember that when a jury acquits someone, it simply means that the prosecution did not meet the burden of proof for guilt; it does not necessarily mean the defendant didn't commit the crime.)

The statute itself declares that if the petition is granted, "the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence." In addition, the statute requires the law enforcement agency that has jurisdiction over the offense (or the court) to issue a written declaration to the arrestee stating that he or she is factually innocent (Cal. Penal Code § 851.8(f)).

Destroying all the arrest and prosecution records of an innocent person makes good sense. But going further and destroying the PFI itself, as well as any papers filed in opposition to it, is also crucial. The process would be pointless if any of the related court filings remained open to public inspection.

The upshot of relief under Penal Code section 851.8 is that current and potential employers, as well as anyone else seeking public records, will not have access to any of the records that reveal the arrest. Although Labor Code section 432.7(a) generally prohibits an employer from asking about any arrest that did not result in conviction, job inquiries are only the tip of the iceberg. An arrest record can have a dramatic impact on a host of matters: child custody, adoption, school admission, licensing, credit, insurance premiums, and?perhaps most important of all?a person's reputation in the community.

In some situations, the revelation of a prior arrest is unavoidable, as in the case of a person applying to become a police officer. But there are other circumstances where a client just doesn't want others to know about his or her past. Consider the innocent person with a record of arrest for armed assault on a police officer. What if another officer pulls that person over years later for a broken taillight? It's easy to understand why factual innocence petitions are important.

How It's Done
If no charges were filed following an arrest, the petitioner must first submit a PFI to the arresting police agency, sending a copy to the county district attorney. If the police ignore the PFI (which is typical), the arrestee must wait until 60 days after the statute of limitations for the offense expires, and then file the PFI in court. (See section 851.8(b).)

However, if charges were filed, the defendant must wait until they are resolved. The good news is that if there is a dismissal or acquittal, the defendant can file a PFI immediately under section 851.8(c), providing just the minimum ten days' notice to the district attorney and the appropriate law enforcement agency with jurisdiction over the case. Forms are available from the state Department of Justice, and there's no filing fee (Cal. Penal Code § 851.8(g)).

Because many police departments designate a "factual innocence liaison officer," attorneys should consider calling that person to verify the department's practices with respect to PFIs. If the liaison officer is helpful, the process may go more smoothly than anticipated; if the liaison officer is a hindrance, a word to the command structure may result in more cooperation in the future.

The statute specifically allows petitioners to submit a variety of supporting evidence, including declarations, police reports, "or any other evidence ... which is material, relevant and reliable." (Penal Code § 851.8(b).) As police reports are unsworn and frequently contain significant hearsay, the statute appears to authorize the use of hearsay evidence. When relying on hearsay?whether inside or outside of the police report?it is good practice to submit additional declarations establishing the reliability of any such information submitted.

Practitioners should take advantage of this liberal evidentiary rule, particularly because prosecutors tend not to oppose PFIs. Letters of recommendation, diplomas, awards, and declarations can give the court a favorable impression of the client. The court's opinion of the petitioner is pivotal, especially when dealing with the fulcrum of the case: the burden of proof.

The petitioner bears the initial burden of proof on a PFI. If the petitioner meets that burden, the onus shifts to the prosecution to show "reasonable cause exists to believe that the arrestee committed" the crime in question. (See § 851.8(b).)

Unfortunately, misunderstanding has swirled around the tense of the verb exists. Despite the rather clear use of the present tense in the statute, some prosecutors, judges, and even appellate justices have suggested that section 851.8(b) requires that there was no reasonable cause to believe the petitioner was guilty at the time of arrest. (See People v. Matthews, 7 Cal. App. 4th 1052 (1992).) However, more recent case law establishes that the key time for viewing the evidence is when the petition is heard. The statutory language "necessarily means that the existence of reasonable cause depends on the current evidence rather than simply the evidence that existed at the time that the arrest and prosecution occurred." (People v. Laiwala, 143 Cal. App. 4th 1065, 1068 & n. 3 (2003).)

This point is crucial. The purpose of the statute is not to critique a police officer's arrest, but rather to allow a factually innocent person to move forward without a dark cloud trailing behind.

Practical Issues
When requesting an order to seal and destroy records maintained by law enforcement, there are several practical issues to keep in mind. First, it is good practice to submit ample evidence of the client's good character. It's essential that the court consider the petitioner to be deserving of relief and see the equity in his or her request.

Another complication: The police report is not in the court's docket and is unlikely to support the petition. But it would be unwise to ignore the report and simply submit declarations about the client's innocence. Rare is the judge who will grant a PFI without first reviewing the underlying police report. Omitting it will likely result in a denied petition or, at a minimum, a delay in the proceedings until the report comes to light. Attaching the report from the outset preserves credibility with the court. A good advocate treasures credibility, especially when relying on credible, convincing evidence of innocence that eclipses whatever negatives may exist in the police narrative. Remember that a lot of things happen after an arrest: New evidence is discovered; memories change; witnesses recant. All these changed circumstances should be presented to the court with a PFI.

The statute of limitations is another crucial practical issue. Under Penal Code section 851.8(l), the petition must be filed within two years of the arrest or of the filing of the accusatory pleading, whichever is later. The time limit applies despite the clause in subsection 851.8(c) that the petition "may be filed at any time after dismissal of the action." (See People v. Bermudez, 2009 WL 793012 at *24 (March 27, 2009).)

Of course, there can be a problem if the case drags on in court for more than two years. In such a situation, there would appear to be good cause under subsection 851.8(l) to waive the time limit. Indeed, as the court noted in Bermudez, "One obvious example of good cause for exceeding the statutory deadline arises when the accusatory pleading is filed more than two years before the case is resolved in favor of the accused." (2009 WL 793012 at *4 & n. 6.)

"No Charge" Cases
An intricate issue arises when an arrest is made but no charges are filed. In such a case, the petitioner must serve the PFI on the arresting law enforcement agency. The theory is that if the arresting agency grants the petition, it will proceed to seal and destroy the appropriate records and instruct all other affected law enforcement agencies to do the same. No court action would be necessary.

Is this likely to happen? No. Few police departments want to admit error, let alone do all that work. The customary police response to a PFI is to ignore it, whereupon section 851.8(b) controls and essentially places the arrestee in limbo. The arrestee must then wait until 60 days after the relevant statute of limitations expires before filing a PFI with the court.

This scenario can be (and often is) a problem in the rough-and-tumble world of work. For example, someone working for a defense contractor may lose security clearance in the interim. The situation is also problematic for a pharmacist erroneously arrested for cocaine possession, or a church youth counselor falsely arrested for possessing child pornography. What becomes of these innocent people while a false felony arrest remains on their record for years?

An Early PFI
When police ignore a petition, it is possible that a fair-minded prosecutor may stipulate to the early filing of a PFI. Attorneys might contact a supervisor in the district attorney's office who has authority over this area. Early petitions are equitable, especially because the law provides that in cases in which charges are dismissed, the petition can be filed immediately (§ 851.8(c)). Yet when authorities never file charges, the long delay in getting a factual innocence order selectively denies relief to those who most deserve it?people who are so obviously innocent that even the prosecutor saw no cause to pursue charges in court.

An early PFI must include a showing of good cause to excuse the time restrictions. The petitioner must convince the court that continuing to wait for the police or a prosecutor to respond to a PFI is an idle act. On this question, the police department's factual innocence liaison officer may provide a mother lode of evidence. Consider calling that person to testify regarding the department's practices with respect to PFIs. If the department has no such liaison, other local attorneys might make declarations to the effect that waiting for a response to a PFI is, indeed, a futile act. And the law does not require a litigant to engage in futile acts. (See Cal. Civil Code §§ 3531, 3532.)

If a prosecutor does respond to a PFI, the reply may include an assertion that the district attorney has the right to file criminal charges up until the expiration of the statute of limitations. The prosecutor will probably express reluctance at the surrender of that right. And therein lies the rub. For most common felonies the applicable statute of limitations is three years (Cal. Penal Code § 801); some periods are even longer, such as the six-year limitations period for charging a lewd act upon a child (Penal Code §§ 288, 800). Thus, because section 851.8(b) provides that a petitioner must wait until 60 days after the limitations period expires, the hapless innocent arrestee who has never been charged may languish with a false arrest record for 38 months or more.

The confusing language of the statute compounds the problem. It seems to require the filing of a PFI within two years after the date of the arrest or of the filing of the accusatory pleading, whichever is later (subsection (l)), but no sooner than 60 days after the expiration of the statue of limitations, which could be three years or more (subsection (b)). Fortunately, the Legislature embedded a practical solution within subsection (l).

The Escape Clause
The last sentence of subsection (l) provides that at any time, "restrictions on filing for relief under this section may be waived upon a showing of good cause and in the absence of prejudice." This language appears to give the court discretion to cut short the prosecutor's time to file charges during the unexpired limitations period.

Then the question becomes, who shows better "good cause"? The factually innocent arrestee facing three years of suffering under a false arrest record? Or a prosecutor who saw no grounds to file charges following the arrest but who wants even more time to consider charging a person who is presumed innocent under the law?

If the court is leaning toward allowing the prosecutor the full limitations period to consider charging the arrestee, be prepared to remind the court that the whole point of the remedial statutory scheme is to give prompt relief to innocent people. Any order denying a waiver of the time restrictions will adversely affect only one person?the innocent petitioner.

If it does become necessary to apply for a time waiver, making the client appear to be of good character can help to tip the scales of justice. A judge who is convinced that the petitioner is both innocent and a good person will be motivated to do the right thing.

That's factual innocence in a nutshell. In an ideal world, PFIs would be unnecessary because there would be no false arrests. But this is the real world, and sometimes these remedies may be an innocent person's lifeline. In the end, although Penal Code section 851.8 is a law that can do a lot of good, it is of no use unless it is applied promptly. Indeed, when dealing with innocent clients, justice delayed is justice denied.

Brian Dinday practices criminal law in San Francisco and San Rafael.

---