How to File a "Petition for Factual Innocence" in California

Penal Code 851.8 PC is the California statute that directs how a party may bring a petition for factual innocence (“PFFI”).

A PFFI essentially shows that there was no reasonable cause to believe a person committed an offense for which he was arrested. If granted, a PFFI means the police department and the Department of Justice must seal and destroy all records of a person's arrest and any subsequent criminal proceedings.

A party files a petition for factual innocence with the law enforcement agency having jurisdiction over the offense. And, in the petition, the arrested person can attempt to prove his innocence via both direct and circumstantial evidence.

Persons can attempt to file a PFFI after an arrest for basically any crime, including:

A PFFI is helpful to prevent an arrest from showing up on a background check. A record of an arrest could have a negative impact when an entity runs a background check for any of the following:

  • an apartment application,
  • a request for a loan, and/or
  • a school application.

An arrest record could also result in the loss of a person's gun rights if he was arrested for violating one of California's domestic violence laws. Thus, a PFFI helps protect these rights.

Closely associated with PC 851.8 is Penal Code 851.87 PC, which is the California statute pertaining to the sealing of arrest records. Under PC 851.87, arrest records get sealed as a matter of right. “Sealing” an arrest means the record will not show up on most criminal background checks in California.

Our California criminal defense attorneys will highlight the following in this article:

attorney signing document
Penal Code 851.8 PC is the California statute that directs how a party may file a petition for factual innocence (“PFFI”).

1. What is the legal definition of a petition for factual innocence?

Factual innocence” legally means that a person is innocent of any criminal act. A party files a PFFI following an arrest in order to have the arrest record destroyed.

A successful petition for factual innocence shows that there was no reasonable cause to believe a person committed an offense for which he was 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 a party's arrest records for three years (from the date of the arrest).1 After this time, the records and the petition get destroyed.2

2. How does a party file a PFFI?

After an arrest has been made, a party files a PFFI with the law enforcement agency having jurisdiction over the offense.3

In the petition, the arrested party must prove that his arrest was made without legal cause.4 A party can attempt to satisfy this burden of proof by submitting any of the following pieces of evidence:

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

If a party shows that there was no reasonable cause for an arrest, it is then up to a prosecutor to show that there was 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 the PFFI should be granted.5

Please note that a party must file a petition for factual innocence within two years from the date of the arrest.

judge smiling happy
If a judge is convinced that there was no reasonable cause for a party's arrest, then he/she will grant the PFFI.

3. What is the result of a petition for factual innocence being granted?

If a judge is convinced that there was no reasonable cause for a party's arrest, then he/she will grant the PFFI.

Once this occurs, the police department and the Department of Justice must seal and destroy all records of the person's arrest and any subsequent criminal proceedings.6

In addition, the above entities 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. Under what scenarios can a person file a petition for factual innocence?

A party can file a PFFI post-arrest. But there are actually four distinct scenarios under when a person can file a petition. These are when a person:

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

5. Why file a PFFI?

The reality is that arrest records can make it difficult for persons 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 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, depending on the exact offense that a person was arrested for. For example, if a party is arrested for violating one of California's domestic violence laws, then the party could lose his gun rights. This means a PFFI is helpful in making sure these rights are protected.

sealed record california
“Sealing” an arrest means the record will not show up on most criminal background checks in California.

6. What does it mean to seal an arrest record, per California Penal Code 851.87?

Penal Code 851.87 is the California statute that pertains 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 in California.

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

  1. criminal charges were filed but later dismissed,
  2. the defendant was found “not guilty” (acquitted) in a jury trial,
  3. the defendant's conviction was vacated or overturned on appeal, or
  4. the defendant successfully completed a pretrial diversion or pre-sentencing program, such as Prop 36 drug treatment or Penal Code 1000 deferred entry of judgment.7

An exception to sealing an arrest record as a matter of right is when the person arrested has a history of arrests and/or convictions for:

It typically takes about ninety days after filing a petition to get a court order to seal an arrest record in California.

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

  • 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 dissemination 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, district attorney, or the Attorney General.

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

Are you interested in filing a petition for factual innocence in California? Call us for help…

california criminal defense attorneys
Call us for help at (855) LAW-FIRM

If you or someone you know has been arrested of a crime in California and are interested in sealing the arrest record, per Penal Code 851.8, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.

For questions on sealing arrest records in Nevada, please see our article on How to Seal Criminal Records in Las Vegas, Nevada (NRS 179.245). And, for questions on sealing criminal records in Colorado, please see our article on Getting criminal records sealed in Denver, Colorado.


Legal References:

  1. California Penal Code 851.8 PC. PC 851.8(a) states: (a) In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest. A copy of the petition shall be served upon the prosecuting attorney of the county or city having jurisdiction over the offense. The law enforcement agency having jurisdiction over the offense, upon a determination that the person arrested is factually innocent, shall, with the concurrence of the prosecuting attorney, seal its arrest records, and the petition for relief under this section for three years from the date of the arrest and thereafter destroy its arrest records and the petition. The law enforcement agency having jurisdiction over the offense shall notify the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this subdivision, of the sealing of the arrest records and the reason therefor. The Department of Justice and any law enforcement agency so notified shall forthwith seal their records of the arrest and the notice of sealing for three years from the date of the arrest, and thereafter destroy their records of the arrest and the notice of sealing. The law enforcement agency having jurisdiction over the offense and the Department of Justice shall request the destruction of any records of the arrest which they have given to any local, state, or federal agency or to any other person or entity. Each agency, person, or entity within the State of California receiving the request shall destroy its records of the arrest and the request, unless otherwise provided in this section.”

  2. See same.

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  7. California Penal Code 851.87 PC.

  8. See same.

  9. Penal Code 851.92(b)(2)(B)(6) PC.

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