How an Expungement, a Certificate of Rehabilitation, and a Governor’s Pardon Can Improve Your Job Prospects

If you’ve been looking for work, you know how competitive the job market is. The search becomes even more challenging if you have a criminal conviction on your record.

Rightly or wrongly, many prospective employers are just fine with passing on an applicant who has suffered a criminal conviction — even if the applicant has the skills to do the job. And why not if there’s a line of equally qualified, squeaky clean candidates to choose from? 

Darren comes to class prepared, listens more than he speaks,
and volunteers in the community in his spare time.
God, Darren. Live a little — I mean, when can you start?

Expungement, a certificate of rehabilitation, and a governor’s pardon are three types of post-conviction relief that enable you to clean up your record. They won’t give you a competitive advantage over other applicants, but they will put you back on a level playing field with everyone else.

1. If You Were Sentenced to Probation Only, Seek an Expungement

In general, if your criminal conviction resulted in a sentence of only probation, then you may be eligible to expunge your conviction under Penal Code §1203.4. This is true regardless of whether you were convicted of a felony or a misdemeanor.[i]

Once your conviction is expunged, you will not have to disclose it when applying for a job;[ii]  prospective employers, if they find the conviction on their own, cannot use it as a basis for not hiring you;[iii]  and your current employer cannot fire you upon discovering the conviction[iv]. Please, understand: These protections apply only if your conviction is expunged.

Even if you received a sentence of probation only, you will be ineligible for expungement relief if your underlying conviction was for any of the following disqualifying offenses[v]:

• Felony conviction for Penal Code §261.5(d) – Unlawful sexual intercourse with a child under 16 by an adult aged 21 or older
• Penal Code §286(c) – Sodomy of a child under 14
• Penal Code §288 – Lewd act on a child under 14
• Penal Code §288a(c) – Oral copulation with a child under 14
• Penal Code §288.5 – Continuous sexual abuse of a child
• Penal Code §289(j) – Sexual penetration of a child under 14 by a perpetrator more than 10 years older
• Penal Code §311.1 – Distribution of child pornography
• Penal Code §311.2 – Distribution of child pornography for sale
• Penal Code §311.3 – Creation of child pornography (AKA sexual exploitation of a child)
• Penal Code §311.11 – Possession of child pornography
• Misdemeanor conviction for Vehicle Code §2800 – Failure to comply with lawful order of a peace officer
• Misdemeanor conviction for Misdemeanor Vehicle Code §2801 – Failure to comply with lawful order of a fireman
• Misdemeanor conviction for Misdemeanor Vehicle Code §2803 – Failure to comply with lawful order of a traffic officer

If you are ineligible for expungement because your conviction was for a disqualifying offense or because you were sentenced to prison, another option available to you is to seek a certificate of rehabilitation. (See #3, below.)

2. If You Were Sentenced to Jail, You May Still Be Eligible for Expungement

Even if you received a sentence other than probation, you may still be eligible for expungement. Over the years, the California State Legislature has expanded the number of scenarios that qualify for expungement relief. As a result, it is possible to expunge the following types of convictions:

• Felonies for which you were sentenced on or after October 1, 2011, and received a jail sentence pursuant to Penal Code §1170(h)[vi]
• Misdemeanors for which you received a sentence other than probation (such as jail)[vii]

For eligible felonies, you must wait an additional one to two years after completing your prison sentence (depending on whether you were placed on a period of mandatory supervision) before you can apply for expungement.[viii] For eligible misdemeanors, you cannot petition the Court for expungement until one year has elapsed from the date that you were sentenced.[ix]

Other convictions that also qualify for expungement relief are:

• Infractions (but not traffic infractions)[x]
• Certain drug offenses that were dismissed pursuant to a pretrial drug diversion program[xi]
• Prostitution charges — in particular, if you were a victim of human trafficking[xii]

3. If You Are Ineligible for Expungement, Then Apply for a Certificate of Rehabilitation

A certificate of rehabilitation under Penal Code §4852.01, if granted, does not entitle you to the employment protections of an expungement as described above.[xiii] In other words, even if you receive a certificate of rehabilitation, you must still disclose your conviction to prospective employers.[xiv]

The benefit of obtaining a certificate of rehabilitation is to demonstrate to prospective employers that, despite your conviction, you took affirmative steps to complete your sentence and that you have rehabilitated to the satisfaction of a Judge.

Although it cannot prevent your conviction from being disclosed, a certificate of rehabilitation is your best option if you were convicted of an offense that is ineligible for expungement or if you were convicted of a felony and sentenced to prison.[xv]

You should be aware that it takes longer to obtain a certificate of rehabilitation. You cannot even apply for a certificate until:

• You complete your sentence;[xvi]
• You continuously reside in California for seven to ten years after you complete your sentence, depending on your underlying crime;[xvii]
• You can demonstrate that you’ve lived an honest and upright life, obeyed all laws, exhibited industriousness, and remained sober.[xviii]

In essence, to obtain a certificate of rehabilitation, you are required to demonstrate to the Court that you’ve learned from your past misconduct and have made something of yourself or, at least, that you’ve taken significant steps to turn your life around.[xix]

Even if you are able to do so and even if you’ve continuously resided in California for the requisite amount of time, you will be ineligible to receive a certificate of rehabilitation if your underlying conviction was for any of the following offenses[xx]:

• Penal Code 261(a)(2), (a)(6) – Rape of a child under 14
• Penal Code 264.1 – Rape of a child under 14 in concert with another
• Penal Code 286(c), (d) – Sodomy of a child under 14
• Penal Code 288 – Lewd act on a child under 14[xxi]
• Penal Code 288a(c), (d) – Oral copulation with a child under 14
• Penal Code 288.5 – Continuous sexual abuse of a child
• Penal Code §288.7 — Sexual intercourse or sodomy with a child by perpetrator more than 10 years older
• Penal Code 289(a) – Sexual penetration of a child under 14 by force
• Penal Code 289(j) – Sexual penetration of a child under 14 by a perpetrator more than 10 years older

Additionally, the following persons are also ineligible to receive a certificate of rehabilitation[xxii]:

• Those who are currently serving in the military;
• Those serving a mandatory life parole;
• Those who have been sentenced to death

Thus, if you are currently serving in the military, or if you suffered a conviction for a disqualifying offense, or if you received a disqualifying sentence, you cannot receive a certificate of rehabilitation.

In that case, the only form of post-conviction relief available to you is to apply directly for a Governor’s pardon.[xxiii] (See #5, below.) However, beware that if you apply for a Governor’s pardon, it is exceedingly rare that your request will be granted.

4. If Granted, a Certificate of Rehabilitation Is Also an Automatic Application for a Governor’s Pardon

An added benefit of a certificate of rehabilitation is that, once it is granted, the certificate simultaneously serves as an application for a pardon from the Governor.[xxiv] The granting of a pardon is rare; a review of California’s last six governors revealed that only about 45 pardons, on average, are issued each year.[xxv]

Still, if you are able to obtain a pardon from the Governor, all of the rights that you lost as a result of your conviction will be restored,[xxvi] rights such as:

• The right to serve on a jury;[xxvii]
• The right to possess a firearm (unless you were convicted of a felony involving the use of a dangerous weapon);
• The ability to work as a probation officer or parole officer (but not as a peace officer);[xxviii]
• Relief from the lifetime duty to register as a sex offender — if the underlying conviction was for certain sex crimes[xxix]

Still, the disclosure is mitigated by the fact that both a Judge and the Governor of the State of California have, effectively, vouched for you.

Additionally, seven years after you receive your pardon, your conviction can no longer be included in criminal record checks by third-party, consumer reporting agencies.[xxx]

5. If All Else Fails, Your Only Option is to Apply Directly to the Governor for a Pardon

Those who are ineligible to apply for a certificate of rehabilitation (see #3, above), or whose petition for a certificate of rehabilitation was denied, can apply directly to the Governor for a pardon.

However, the granting or a direct pardon is exceptionally rare. According to the Governor’s website, “[a] gubernatorial pardon is an honor that may be granted to people who have demonstrated exemplary behavior following their conviction. A pardon will not be granted unless it has been earned.”[xxxi]

Additionally, if your criminal record contains two felony convictions (including the conviction for which you are seeking a pardon), then, in addition to the support of the Governor, you’ll also need the approval of four justices of the California Supreme Court before you can receive a pardon.[xxxii]

Conclusion

When you have a conviction on your criminal record, it can feel like prospective employers see you as marked with a scarlet letter. But post-conviction relief is available. An expungement can help you avoid disclosing your conviction altogether. Alternatively, a certificate of rehabilitation and a Governor’s pardon show that people in positions of authority attest to your rehabilitation.

Just know that if you’ve suffered a conviction and would like to remove — or, at the least, blunt — this barrier to employment by cleansing your criminal record and removing the stigma associated with your conviction, help is available.