If you were a victim of intimate partner violence or sexual violence, either as a juvenile or as an adult, and you committed crimes while you were a victim of intimate partner violence or sexual violence, you may be able to get arrest and/or conviction records vacated and sealed. Effective January 1, 2022 Penal Code § 236.15 allows any victim of intimate partner violence/sexual violence who has been arrested for, or convicted of, any nonviolent crime which occurred “as a direct result of being a victim of intimate partner violence/sexual violence” to petition to have the records relating to the arrest or conviction sealed and to have the conviction vacated. The petition is called Intimate Partner Violence/Sexual Violence Vacatur Relief petition.

Who is eligible?

YOU MAY BE ELIGIBLE IF:

· You were a victim of intimate partner violence/sexual violence; AND

· You were arrested for or convicted of any non-violent crime committed while you were a victim of intimate partner violence/sexual violence. (NOTE: “Non-violent” crime has a very specific meaning. It means any crime NOT listed in Penal Code § 667.5(c); all misdemeanors and most felonies are considered non-violent for this relief); AND

· You committed the crime as the direct result of being a victim of intimate partner violence or sexual violence; AND

· You are engaged in a good faith effort to distance yourself from the intimate partner violence/sexual violence partner.

YOU ARE NOT ELIGIBLE IF:

· The arrest or conviction is for a violent crime that is listed in Penal Code § 667.5(c) (NOTE: if you have other arrests and convictions that are non-violent you can still petition to have those cases sealed and vacated); or

· The crime occurred while you were not a victim of intimate partner violence/sexual violence; or

· The crime was not the direct result of being a victim of intimate partner violence/sexual violence.

Who is a “victim of intimate partner violence/sexual violence?”

You may be a victim of intimate partner violence/sexual violence:

· If you experienced abuse or aggression in a romantic relationship;

· If a significant other did something to you resulting in physical or emotional trauma;

· If you were unwillingly subject to an act that was sexual in nature;

· If you experienced physical violence defined as when a partner hits, kicks or uses any other type of force;

· If you experienced sexual violence defined as when a partner forces or attempts to force a partner to take part in a sex act, sexual touching, or a non-physical sex event (e.g. sexting) when the partner does not or cannot consent;

· If you experienced stalking defined as a pattern of repeated, unwanted attention and contact by a partner that causes fear or concern for one’s own safety or the safety of someone else close to the victim;

· If you experienced psychological aggression defined as the use of verbal and non-verbal communication with the intent to harm another partner mentally or emotionally and/or to exert control over another partner.

What is a “non-violent” crime?

Under this law, a non-violent crime is any crime not listed in Penal Code §667.5(c). All misdemeanors under this law are non-violent crimes. Most felonies under this law are non-violent crimes. Only the most serious crimes are considered “violent” crimes and they spelled out in Penal Code §667.5(c).

What does it mean that the crime was the “direct result of being a victim of intimate partner violence/sexual violence?"

The crimes covered by this law are broad. It may include, for example, crimes such as drug use and possession if the reason you were using was to cope with being a victim of intimate partner violence/sexual violence.

What will a Petition for Intimate Partner Violence/Sexual Violence Vacatur Relief do?

· The Court will deem the arrest and any adjudications or convictions not to have occurred (in other words it is as if it never happened);

· All the records (for example, police reports, court files, booking information, rap sheet information) will be sealed and ultimately destroyed;

· On any future applications, including jobs, housing etc., you can legally deny ever having been arrested for or convicted of the offense for which relief was granted.

What won’t a Petition for Intimate Partner Violence/Sexual Violence Vacatur Relief Do?

· If you owe restitution (money paid to the victim of your offense for damages you caused as ordered by the court) you will still have to pay the restitution. The Vacatur Relief petition does not get rid of your obligation to pay restitution.

· It will not change arrests or convictions in other states or in federal court.

How do I Petition for Intimate Partner Violence/Sexual Violence Vacatur Relief?

The law says you must “establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of intimate partner violence/sexual violence.”

You have to convince a judge that:

(1) You were a victim of intimate partner violence/sexual violence at the time the nonviolent crime was committed;

(2) The commission of the crime was a direct result of being a victim of intimate partner violence/sexual violence;

(3) You are engaged in a good faith effort to distance yourself from the intimate partner violence/sexual violence partner;

(4) It is in your best interest and in the interests of justice to vacate, seal and destroy the records.

To convince the judge you must submit a petition under penalty of perjury that:

· Describes all of the available evidence that you were a victim of intimate partner violence/sexual violence; and

· Explains how the arrest or conviction of a nonviolent offense was the direct result of being a victim of intimate partner violence/sexual violence; and

· Describes your good faith effort to distance yourself from the intimate partner violence/sexual violence partner; and

· Includes any documents, letters, reports or other evidence which support your claims.

A copy of this petition for relief and supporting documents must be served on the prosecutorial agency (District Attorney or City Attorney).

The prosecutorial agency has 45 days from the date of receipt to respond to the petition for relief.

What if I have cases in different parts of San Diego County or other counties?

The law allows, if you want and all the different prosecutorial agencies agree, to have one petition and one hearing cover all your cases even if they occurred in different counties.

Will there be a hearing?

Maybe. A hearing is not required if the prosecution does not oppose your petition, or if the prosecution does not respond to your petition within 45 days. The court will deem the petition unopposed and may grant the petition without a hearing.

The court will hold a hearing if the prosecution opposes your petition.

If there is a hearing, what can I expect to happen in court?

At the hearing, the judge may consider:

· Your testimony. You need to be at the hearing unless the judge agrees to have you participate over the telephone or videoconference.

· Any evidence and supporting documentation in support of the petition. This can include:

o Official documentation of your status as a victim of intimate partner violence/sexual violence

o Court records

o Police reports

o Character letters, certificates, proof of participation in any programs, etc.

· Any opposition evidence presented by any of the involved state or local prosecutorial agencies that obtained the conviction.

Is there a deadline for filing my petition?

The law says “[a] petition . . . shall be made and heard within a reasonable time after the person has ceased to be a victim of intimate partner violence/sexual violence, or within a reasonable time after the petitioner has sought services for being a victim of intimate partner violence/sexual violence, whichever occurs later.”

A judge has discretion to hear petitions that go beyond these limits with a showing of good cause. The court will look at reasonable concerns for you, your family’s, or other victims of intimate partner violence/sexual violence safety who may be jeopardized by filing the petition.

How much does it cost to file a Petition for Intimate Partner Violence/Sexual Violence Vacatur Relief?

There is no cost to file a Petition for Intimate Partner Violence/Sexual Violence Vacatur Relief.

Do I need a lawyer to file a petition?

No, a lawyer is not necessary to file the petition, BUT we highly recommend you consult with a lawyer familiar with the law and the process in San Diego County.

What if I want a lawyer to assist me?

We strongly encourage you to work with a lawyer. You may hire a lawyer, or our office may be able to help you at no cost. Our experienced attorneys will review your entire record and determine what relief you are eligible for. Some petitions are more complicated, and the judge needs to see additional information to help make a decision. Our office can assist you by researching your record, gathering records and supporting documents, writing petitions, motions and declarations, filing petitions, motions and declarations in court, serving the petition on the prosecutorial agency, and appearing in court, if necessary, to argue for the petition to be granted.

If you would like our office to assist you, fill out and submit the Fresh Start Program Request for Assistance form.

You may e-mail, fax, mail, or drop off your request form.

Office of the Public Defender Email: Fresh.Start@sdcounty.ca.gov

Fresh Start Program Fax: (619) 338-4811 (Attn: Fresh Start Program)

451 A Street, Suite 900

San Diego, CA 92101

If my convictions are vacated, what should I put on a job, school, licensing, or military applications if there is a question about whether I have a conviction?

If the court grants your Petition, any arrest or conviction covered in the judge’s order is deemed never to have happened. You can legally say it does not exist.

If I do not have any felonies on my record, can I serve on jury duty?

Yes, in accordance with Senate Bill 310.

If I have my case(s) vacated and sealed, can I get my DNA out of the DNA database?

Maybe. See DNA Database Expungement FAQ.

Now that I don’t have a felony, I do not have funding for my drug treatment or mental health treatment. Where can I go for help with my drug, alcohol, or mental health issues?

For information about services, you can call the Access and Crisis line at 888-724-7240. This line is available 24 hours a day, 7 days a week.

If I have questions, who can I contact for help?

Please call the Office of the Primary Public Defender at (619) 338-4700 and ask to speak to someone from the Fresh Start Program. The Office of the Primary Public Defender will assist you even if you had an attorney from the Office of the Alternate Public Defender, a court appointed panel attorney, or you retained an attorney and now cannot afford to pay the attorney for assistance. You may also email a question to Fresh.Start@sdcounty.ca.gov.

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