PC 851.8 – Certificate of Factual Innocence

Certificate of Factual Innocence – Table of Contents

• PC 851.8 Overview
• PC 851.8 Prosecuting
• PC 851.8 Sentencing
• PC 851.8 Defending
• Certificate of Factual Innocence – Hire Us

PC 851.8 – Overview

What is a Certificate of Factual Innocence as defined under California Penal Code 851.8?

Anyone that was arrested, and no charging document was filed against them by the Prosecution, nor notice of appearance mailed to the accused, can request from the arresting agency, by way of petition to destroy the record of the arrest and receive a certificate demonstrating factual innocence. The same can be provided to an arrestee that was arrested, detained and released so long as documentation of the release is attained, certified by the arresting officer, the arresting agency, and attributed by seal by the Attorney General’s Office which describe the circumstances as a detention and not an arrest ( hold and release).

PC 851.8 – Prosecuting

What is Factual Innocence as defined under California Penal Code 851.8?

A finding of factual innocence and an order for sealing the record of the arrest and request its destruction will not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.

What is the burden of proof required of the Petitioner or Accused to attain a determination of Factual Innocence as defined under California Penal Code 851.8?

The Petitioner or Accused must demonstrate that no reasonable cause exists to believe that the Accused or Arrestee committed the offense for which the arrest was made. Establishing factual innocence requires that the Petitioner show the accused or arrestee had a viable substantive defense for the crime charged or there was no reasonable cause for the arrest. The United States Supreme Court stated that the Petitioner must show the Prosecution should not have subjected the Petitioner to the compulsory process of criminal procedure by the introduction of an arrest because there is no objective factors justifying the official action. The record must exonerate any notion of an arrest because there is no substantial question of reasonable cause. The prosecution then can rebut the Petitioner’s contention by asserting that there was reasonable cause to believe that the Accused or Arrestee committed the offense for which the arrest was made. This can be done by stipulation and agreement between the parties; or if required the Court can schedule on the calendar a hearing to discuss the same with motions required to be filed and arguments made on the motion.

PC 851.8 – Sentencing

What is the effect or result of a granting order of Factual Innocence as described under California Penal Code 851.8?

California Penal Code is for the benefit of those who have not committed a crime. If the Court makes a finding of factual innocence and grants relief, the Court shall order the Department of Justice or the law enforcement agency having jurisdiction over the offense who arrested the Petitioner to seal the arrest records of the arrest for 3years from the date of the arrest. After 3 years the records will be destroyed. The granting order with the seal, should be delivered to all arresting agencies on the state level to comply with the Court’s order of sealing and the subsequent destruction. Particularly, the Department of Justice will be notified electronically of the order. But the Petitioner can take the initiative and personally notify the Department of Justice and send them a copy of the order, who will then notify all relevant local arresting agencies.

After 3 years can the records be used once the 3-year period of sealing has ceased from a granting order of relief of Factual Innocence as described under California Penal Code 851.8?

Technically yes, if there has been a crime committed which names the Petitioner as a party to the investigation and the statute of limitations has not expired with the same arresting agency who is aware of the seal order which derived from the granting order of relief of factual innocence; and the investigation concerns similar victims, facts, witnesses and circumstances- a nexus is required between the facts pertinent to the motion requiring the granting order from the Petitioner and new arrest.

What is the procedure for requesting a determination of Factual Innocence as described under California Penal Code 851.8?

A Petition must be drafted detailing the facts of the arrest. The motion must be served to the arresting agency, the Prosecution and Court within 10 court days of the designated hearing set.

The Petition as a motion is making a request to a Court to determine the Petitioner, as the arrestee of the facts so described, as factually innocent because there is no sufficient finding of reasonable cause to make an arrest. Within this request, the Petitioner-arrestee must utilize any available affirmative defense, circumstantial and direct evidence which attributes to this finding that no reasonable cause exists which can otherwise motivate the court to determine that the arrestee committed the offense that took place. Specifically, the Petition must incorporate all evidence that is material and reliable. The Petitioner should utilize declarations, affidavits, police reports; and if necessary live testimony on the date of the hearing.

Note that before or after the 10-day period the Prosecution does have the option of filing a responsible Petition or pleading to contest the requested relief.

Is there any Statute of Limitations for the Petition of Factual Innocence defined under California Penal Code 851.8?

Technically no- but there are two avenues toward seeking a determination of Factual Innocence. First the Petitioner can directly make a request and file a Petition with the arresting agency and prosecutorial office. This can be done without filing the petition with the Court. If so the arresting agency and prosecution have 60 days to accept the petition and either accommodate or deny the request- even without filing a response to the Petitioner. After 60 days the Petition request is determined denied if after 60 days nothing corresponds. Which is why the second option is best. Second- file a motion with the Court and seek their assistance as a neutral arbitrator.

PC 851.8 – Defending

Can the Prosecution and Defense Counsel stipulate a Factual Innocence as defined under Penal Code 851.8?

Yes- if there has been an arrest, followed by a filing of a charging document, but there resulting no conviction, either because of no plea, preliminary hearing, no trial, or procedure of a verdict by bench judge or jury verdict. The prosecution and defense counsel can stipulate or agree to a dismissal or the charges. Which then can prompt the filing or stipulation inside the court upon verbal motion of defense counsel to request a ruling for a finding or factual innocence. The same procedure can be prompted after an acquittal where there was an arrest, a filing, and subsequent trial to obtain a conviction upon a verdict.

What are the responsibilities of the Department of Justice and local law enforcement once a determination of Factual Innocence has been granted by relief by the Court as defined under Penal Code 851.8?

The arresting agency once notified of the granting order of relief of Factual Innocence from the Prosecution or Department of Justice, upon review, shall, draft a written declaration to the Petitioner. The petition must state: that the arresting agency had jurisdiction over the arrest; and that the Petitioner is factually innocence of the charges that were generated from the arrest. The written declaration must state that the Petitioner is exonerated, and the nature of other arrest is now nonexistent. Any investigative reports that were sent to the prosecution in preparation for court will then have the term “exonerated’ on each front page- the Petitioner can get the forms from defense counsel or seek them from the law enforcement agency in its records department; and if necessary, the Petitioner can get the forms from the Court archives. Any minute orders or transcripts can be retrieved from the court reporter

Are there remedies within the State of California governmental structure, apart from pleaded causes of actions for those granted relief of Factual Innocence under Penal Code 851.8?

Yes- the California Victim’s Compensation Board. The purpose of this organization is to provide avenues of reimbursement and compensation for those who have incurred expenses and economic detriment due to law enforcements and the prosecution’s wrongful determination that that there was reasonable cause to arrest the Petitioner. The evidence utilized in the California Penal Code 851.8 Petition as well as the certified declaration of exoneration can submitted to the Cal VC for review for possible enrichment or reimbursement for losses or expenses incurred from the criminal accusations.

Can the records that are sealed under an order granting relief of Factual Innocence under California Penal Code 851.8 be used in court?

Yes- there is an exception. If the Petitioner decides to pursue a civil action against the law enforcement and or the arresting officer, under a claim of right that is associated with the arrest; the court can under an en camera procedure open the seal contents in chambers as if presented with the evidence in traditional court room procedure. Any seal documents can only be referenced as sealed and tab in chronology in evidence. Opposition must demonstrate a finding of good cause to the court to enable the documents being opened en camera.

What acts do not qualify for a California Penal Code 851.8 Petition?

Infractions.

What is the Statute of Limitations for filing a California Penal Code 851.8 Petition?

The Statute of Limitations for the filing is 5 years from the time of the arrest.

PC 851.8 – Hire a Lawyer

If you are arrested, detained and released but found that no charges were promoted against you or that you were arrested, sought to appear in court but charges were either not filed or dismissed call The Esfandi Law Group, APLC for advice pertaining to a PC 851.8 petition. Seppi Esfandi, Principal Attorney of The Esfandi Law Group, APLC, his staff, and Attorneys are delighted to discuss your legal issues and seek retainment to provide solutions.

Call Us for a FREE Case Review: 310-274-6529