Senate Bill 731, Sealing Records for Most Convictions

Senate Bill (SB) 731 provides for “automatic” “arrest relief” of certain criminal records and expungement of many convictions arising in the State of California, including most felony arrests and convictions, effective July 1, 2023. It does this by adding Penal Code §§ 851.93 and 1203.45 and amending Penal Code § 1203.41.

The media has characterized this “arrest relief” as including “sealing,” but this is misleading, as will be described below.

The new law also amends the Education Code in ways to broaden access to becoming a credentialed teacher in California by limiting what convictions may be considered by the Commission of Teacher Credentialling.

Two distinctions must be made for our readers who want to know more about this new law.

First, while the term “automatic” suggests the State of California Department of Justice (DOJ) will do so immediately and perfectly act, we know that prior legislative attempts to provide for such relief in identifying defendants eligible for resentencing have not done this in a thorough manner.

Indeed, the ambitious new law allows this “if the relevant information is present in the department’s electronic records.” Penal Code §§ 851.93(b)(1) and 1203.425(a)(2)(A). This means if the relevant electronic information is not present, such relief is unavailable. As most people are aware, either anecdotally or through personal experience, the DOJ’s electronic records are riddled with many omissions and inaccuracies.

Therefore, while this legislation suggests an experienced criminal defense attorney is now unnecessary (which we applaud to lower financial barriers to those who are eligible), a person may wait years for the self-executing (“automatic”) provisions to take effect, particularly because some experts estimate between 250,000 and one million people are eligible for the relief in this new law. It also requires an eligible defendant to blindly trust that the electronic records for a given defendant are accurate. We do not think most of our clients can afford to be so naïve.

This means retaining an attorney to petition a judge for an order to seal under SB 731 probably remains the most prompt and reliable way of having this expanded provision of the law apply sooner, rather than later.

Second, when “arrest relief” is afforded under the new Penal Code § 851.93, the record is not deleted, removed or erased as it is under the old Penal Code § 851.91 and § 851.92. Instead, after the order is signed, the DOJ will add to one’s criminal history, “a note stating “arrest relief granted,” listing the date that the department granted relief, and this section. This note shall be included in all statewide criminal databases with a record of the arrest.” (emphasis added) Penal Code § 851.93(b)(2).

So, we believe, this new law ironically draws even more unwanted attention to a person’s arrest record, perhaps making the arrest seem even more suspicious and further stigmatizing the person, rather than curing or removing the negative inferences an arrest on one’s record causes.

We cannot help but expect that a potential employer or landlord reviewing a person’s criminal history, upon seeing “arrest relief granted,” with a date and a Penal Code section reference, will infer the person is not only of a criminal disposition, but perhaps litigious, two qualities that cannot help one gain employment or find housing.

Turning to the actual provisions of the new Penal Code § 851.93, the California Department of Justice is obligated to conduct a monthly review of all electronic criminal history records and automatically provide “arrest relief” to people who were arrested for a misdemeanor and / or felony offense and no criminal proceedings were initiated, or criminal proceedings were initiated and the case resolved through diversion through one of many programs or defendant was acquitted at trial.

Section 851.93 takes effect one year after the arrest for a misdemeanor offense (the most typical statute of limitations for a misdemeanor offense) and three years after the arrest for a felony (the most common statute of limitations for a felony). The three-year waiting period for felony “arrest relief” is lengthened to six years when the felony arrest is for a charge punishable by eight or more years in state prison or county jail.

Relief under § 851.93 does not relieve a person of the obligation to disclose the arrest if applying for employment in law enforcement, does not affect any prohibition on owning, possessing or purchasing a firearm or ammunition, and does not alter one’s eligibility to hold public office if affected by the arrest.

Relief under § 851.93 can also be sought by filing a petition oneself or via a private attorney.

Under the provisions of the new Penal Code § 1203.41, “expungement” relief as under Penal Code § 1203.4 is expanded to include people convicted at trial of felonies and who were sentenced to state prison, except for those convicted of offenses wherein registration under Penal Code § 290 (sex offender) is required. Relief under § 1203.41 is not “automatic.” One must petition the court for such relief and the court fee is $150. One may not be in custody, on probation or on parole (or post-release community supervision) to apply.

Notice to the prosecutor must be given at least 15 days prior to the hearing on the petition.

Dismissal of the charge under 1203.41 does not restore one’s right to own, purchase or possess a firearm or ammunition and the conviction must still be disclosed in any state licensing application or renewal, or application for public office.

In short, while the press coverage of this new law is almost universally positive, we see significant problems with this new law for the unwary and caution our clients not to assume the law’s intentions or benefits will be as helpful or made available for free (“automatically”) as soon as intended.