What is a California Pardon?
A California governor’s pardon, also known as a gubernatorial pardon, is a public decree which acknowledges that the pardoned person has been rehabilitated from his crimes.
Reason for Pardon: A pardoned person may have many, but not all, of his legal rights restored (See below). In some cases, a pardoned person may also be excused from the duty to register as a sex offender pursuant to penal code 290 (Applies to both misdemeanor and felony sex crimes convictions that require PC 290 Sex Offender Registration).
Applicability: A California governor’s pardon may be sought after a CA criminal conviction for any misdemeanor sex offense that requires sex offender registration, or after a CA criminal conviction for any felony offense, including any felony offense that require sex offender registration upon conviction.
Indirect v. Direct California Pardon
There are two ways to apply for a California’s governor’s pardon: Indirect application for governor’s pardon and direct application for governor’s pardon.
Indirect California Pardon: An indirect application for governor’s pardon occurs when the applicant (Petitioner) applies for a certificate of rehabilitation, which is later automatically forwarded to the California governor’s office for consideration as a California pardon.
Note: Most California pardon applications take the indirect route (via certificate of rehabilitation). For mor information on the indirect pardon route, see Certificate of Rehabilitation.
Direct Pardon: A direct application for governor’s pardon occurs where the applicant (Petitioner) cannot either meet the residency requirements of an indirect application for governor’s pardon, or where a certificate of rehabilitation is not otherwise available because of the crime for which the applicant was convicted.
Example I: David is convicted of a felony crime in California, but he now lives outside of California. David does not qualify for an indirect application for governor’s pardon because the person does not meet the residency requirements for a certificate of rehabilitation.
Example II: David is convicted of lewd and lascivious act upon a child less than 14 years of age (PC 288(a)). David's crime is not eligible for a certificate of rehabilitation; therefore, David's only option for a governor's pardon is via a direct application. (See List of Sex Crimes Ineligible for a Certificate of Rehabilitation Below).
Note: This article deals primarily with direct application for governor’s pardons for felony sex crimes, particularly the crime of lewd and lascivious act upon a child under fourteen (14) [PC 288(a)] and the crime of continuous sexual abuse of a child under fourteen (14) [PC 288.5(a)]. Aka "Child Molestation" Crimes. For information on indirect application for governor’s pardon through a certificate of rehabilitation, see Certificate of Rehabilitation.
Direct Application for Governor’s Pardon for Sex Crimes
As stated, some sex crimes are not eligible for an indirect application for pardon after a petition for certificate of rehabilitation. For these sex crimes, only a direct application for governor’s pardon is available. The law of California penal code section 4852.01 provides more clarity on the issue:
PC 4852.01 Law
Per California penal code 4852.01(a), … a person convicted of a felony may file a petition for certificate of rehabilitation and pardon… (PC 4852.01(a) Abbrev.). A person may also petition the court for a certificate of rehabilitation and pardon in a sex crime that requires sex offender registration, including a felony or misdemeanor sex crime that requires sex offender registration (PC 4852.01(b) Abbrev.).
However, per PC 4852.01(d), a person convicted of the following sex crimes is not eligible for a certificate of rehabilitation, and therefore not eligible for an indirect application for governor’s pardon:
PC 286(c) Sodomy of Child Under 14, or by Force
PC 287(c) Oral Cop of a Child Under 14, or by Force
PC 288 Lewd and Lascivious Act on a Child Under 14
PC 288.5 Continuous Sexual Abuse of a Child
PC 288.7 Sexual Crimes with Child Under 10
PC 289(j) Sexual Penetration of Child Under 14
PC 288a Oral Cop Crime Similar to PC 287(c)
For the above sex listed crimes, the only path to a governor’s pardon is a direct application path. In other words, a person convicted of any of the above-listed crimes is not eligible for a certificate of rehabilitation. This is true even if the applicant otherwise meets residency requirements for a certificate of rehabilitation.
Note: The most common crimes for which a direct governor’s pardon is sought includes PC 288(a) lewd or lascivious act upon a child under fourteen (14), and PC 288.5 continuous sexual abuse of a child under fourteen (14).
Direct Application for Governor’s Pardon Process
The California’s governor’s office provides the necessary forms and instructions online for a direct governor’s pardon application. For more information see Application for Governor’s Pardon & Notice to District Attorney of Applicant’s Petition for Pardon / Clemency.
Extraordinary Remedy
An application for pardon is an extraordinary remedy. In practice, a California pardon will only be granted in unusual circumstances and only where the defendant has earned this extraordinary remedy.
In fact, per PC 4852.05, to qualify for a governor’s pardon, the applicant… shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.
Note: Evidence of the petitioner’s post-conviction good conduct, lack of propensity for repeat offense, and extraordinary circumstances that justify a governor’s pardon, is usually attached to the application. A sex crimes criminal defense attorney may be used to assist in marshalling and preparing the application documents (i.e., prison record, police report, character reference letters, post-conviction awards and certificates, post-conviction rehabilitation efforts, etc.).
Few governor’s pardons are granted unconditionally, and no CA governor’s pardon is granted where the defendant continues to represent a danger to the community, or where he or she has not otherwise earned this extraordinary remedy.
Note: The California constitution, at Art V, Section, and California penal code 4850, grants the governor the power to issue a gubernatorial pardon, even without further investigation. However, the governor is not obligated to consider any direct or indirect pardon application.
Pardon Limitations: A governor’s pardon does not always restore the defendant’s rights to own firearms. In some cases, only a Presidential pardon may restore the applicant’s gun rights. Also, a pardon does not seal and destroy the applicant’s criminal history or expunge the applicant’s criminal conviction. Finally, California’s governor cannot pardon a criminal conviction that occurred outside of California. For more information, see Expungement of Sex Crimes Convictions.
Multiple Felony Convictions Pardoned: When the defendant has been convicted of two or more felonies, which were prosecuted on separate occasions, then the governor must seek approval from the Supreme Court of California before granting a pardon to either conviction.
Example: David is convicted in 1986 of felony PC 288a(C) (Oral Copulation by Force). In 1992, David is convicted of PC 288(a) (Lewd Act Upon a Child Under 14). In 2023, David applies for a direct pardon for both convictions. Result: both PC 288a(C) and PC 288(a) require a direct application for pardon. The governor may consider pardoning David for both crimes. However, the governor must first seek approval from the Supreme Court of California.
Alternative Remedy: An applicant who does not qualify for a governor’s pardon might still be able to terminate his or her duty to register as a sex offender under California’s new PC 290.5 law. For more information, see PC 290.5 Termination of Sex Offender Registration, Exclusion from Sex Offender Website Listing, & Confusion Regarding Tier Classification for PC 288(a) Crimes.
For more information on a California governor’s pardon as it relates to sex crimes, including the crime of lewd and lascivious act on a child under fourteen (14) [PC 288(a)] and continuous sexual abuse of a child under fourteen (14) [PC 288.5(a)], contact our sex crimes criminal defense attorneys today for a free consultation.
Our sex crimes criminal defense attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, including PC 288(a) lewd act upon a child under 14; PC 287 oral copulation, PC 285 incest, PC 243.4 sexual battery, PC 311.11 possess child porn, PC 314 indecent exposure, PC 289 sexual penetration, PC 647(b) prostitution, PC 261(a) rape by force of fear & more. Call today!
909-913-3138
Related Articles
