§ 851.8 PC – Petition for Factual Innocence in California

Under Penal Code § 851.8 PC, a petition for a certificate of factual innocence is where you ask the court to find that you did not commit a crime for which you were detained, arrested or charged, although never convicted in court.

Specifically, you can seek a petition for factual innocence where you:

1. have been detained by police officers, but not officially arrested for a crime,
2. have been arrested for an offense, but not formally charged,
3. were formally charged with a crime, but the charges were later dismissed, or
4. were formally charged with a crime and tried for that crime, but there was no criminal conviction.

You have the burden to show you are factually innocent of the crime. If the petition is granted, the police agencies must seal and destroy all records of the arrest.

In this article, our California criminal defense attorneys will discuss

• 1. What is factual innocence?
• 2. How do I prove my innocence?
• 3. What happens if I’m found to be factually innocent?
• 4. When am I eligible to apply?
• 5. What are the benefits?
• 6. What does it mean to seal an arrest record?

1. What is factual innocence?

“Factual innocence” means that you are innocent of any criminal act, whether a felony or misdemeanor.

You file a petition for factual innocence (PFFI) in order to destroy arrest records because your arrest should not have occurred in the first place. A successful PFFI shows that there was no reasonable cause to believe you committed an offense for which you were arrested.

California Penal Code 851.8 PC sets forth the procedures for filing the petition. If a petition is granted, the law enforcement agency having jurisdiction over the offense must seal your arrest records for three years (from the date of the arrest).¹ After this time, the criminal records and the petition get destroyed.²

Note that with the implementation of Senate Bill 731 & Assembly Bill 1076 – The Clean Slate Act, California is automatically clearing:

• misdemeanor arrest records if there are no criminal charges after 1 year, and
• felony arrest records if there are no criminal charges after after 3 years.

This process is called “automatic relief.”

2. How do I prove my innocence?

After your arrest, you file a PFFI with the law enforcement agency having jurisdiction over the offense.³

In the petition, you must prove that your arrest was made without legal cause.⁴ You can present evidence to attempt to prove factual innocence. Examples of such evidence include:

1. witness testimony,
2. photos,
3. surveillance video,
4. receipts,
5. cell phone records, and
6. DNA.

In order to prove factual innocence, you have the initial burden of proof to show that there was no reasonable cause for an arrest. Then it is then up to a prosecutor to show that there was, in fact, reasonable cause for the arrest.

Upon hearing from both sides, a judge then determines:

1. whether or not the arrest was warranted, and
2. if your factual innocence motion should be granted.⁵

You must file a petition for factual innocence within two years from the date of the arrest. In short, there is a two-year statute of limitations to bring the petition.

3. What happens if I’m found to be factually innocent?

If a judge is convinced that there was no reasonable cause for your arrest, then the judge will grant your PFFI.

The police department and the Department of Justice must then seal and destroy all records of your arrest. This includes any subsequent criminal proceedings.⁶

Moreover, the police and DOJ must also destroy the following (that are associated with the arrest):

• arrest reports,
• booking information,
• mugshots,
• court records, and
• any evidence collected or gathered.

4. When am I eligible to apply?

Under California law, there are four distinct scenarios under which you can file a PFFI. These are when you:

1. have been detained by an arresting agency, but not officially arrested by police for a crime,
2. have been arrested for an offense, but not formally charged,
3. were formally charged with a crime, but the prosecuting attorneys dropped the charge, and,
4. were formally charged with a crime and tried for that crime, but there was no criminal conviction.

5. What are the benefits?

The reality is that arrest records can make it difficult for you to accomplish basic life goals. Thus, a petition for factual innocence removes barriers to these goals.

A background check these days may now be run for any of the following:

• a job application,
• a professional license,
• a request for a mortgage loan,
• an apartment application, or
• a school application.

If this background check shows a past arrest, the applications or loans could get denied.

An arrest record could cause further complications as well. For example, if you are arrested for violating one of California’s domestic violence laws, then you could lose your gun rights. A PFFI is helpful in making sure these rights are protected.

6. What does it mean to seal an arrest record?

Penal Code 851.87 is the California statute pertaining to the sealing of arrest records as a matter of right. “Sealing” an arrest means the record will not show up on most criminal background checks.

Under PC 851.87, you can have your arrest record sealed as a matter of right when:

1. criminal charges were filed but later dismissed,
2. you were found “not guilty” (acquitted) in a jury trial,
3. your conviction was vacated or overturned on appeal, or
4. you successfully completed a pretrial diversion or pre-sentencing program, such as Penal Code 1000 deferred entry of judgment.⁷

An exception to sealing an arrest record as a matter of right is when you have a history of arrests and/or convictions for:

• domestic violence,
• child abuse, and/or
• elder abuse.⁸

Automatic Sealing

It typically takes about 90 days after filing a “petition to seal” to get a “court order to seal” an arrest record in California. Though as of July 1, 2023, most arrest and conviction records will be sealed automatically pursuant to Clean Slate laws:

• Misdemeanor arrests should be sealed after 1 year if there are no criminal charges, and felony arrests should be sealed after 3 years if there are no criminal charges.
• Cases that get dismissed will be sealed immediately.
• Convictions of cases where you are granted probation should be sealed when the case closes.
• Otherwise, misdemeanors convictions get sealed 1 year after the case ends, while felony convictions get sealed 4 years after the case ends. (This does not apply to serious, violent, or sex offender felonies.)

Who Can See Sealed Records

Arrest records, police reports, and superior court records that are sealed under this section shall not be disclosed to any person or entity except:

• you (the person whose arrest was sealed), or
• a criminal justice agency (which may use the information to the same extent as if the arrest had not been sealed).⁹

Improper release of a sealed arrest can be punished by a civil penalty of between $500 and $2,500 per violation. The penalty may be enforced by:

• a city attorney,
• a district attorney, or
• the Attorney General.

You may also have the right to bring a lawsuit for compensatory damages or possibly even punitive damages (if the release was reckless or intentional).

Additional Reading

For more information, refer to the following:

• Clean Your Record – Step-by-step guide provided by the California Courts Self-Help Guide.
• Expungements – Instructional materials and templates provided by the California Judicial Branch.
• Petition and Order for Expungement – Template provided by the California Judicial Branch.
• California is clearing criminal records — including violent crimes — to offer second chances – article by CalMatters.
• California Residents Can Self-Expunge Criminal Records with New Form – article by L.A. Focus.

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