In 2018 Will Bruzzo and the Law Offices of William W. Bruzzo represented M. Vasquez (not client’s real name) on a Pardon Application and the client received a Gubernatorial Pardon from the Governor of the State of California for felony Drug Offenses that had occurred 24 years previous. The specific offenses were: Transportation of a Controlled Substance, Health and Safety Code Section 11352 and Possession for Sale of a Controlled Substance, Health and Safety Code Section 11378. The Client was sentenced to local jail.

At the time of the offense and for sometime thereafter, the client had been subject to domestic violence and may have been drawn into committing the crime by the abusive spouse. However, the most compelling argument for causing a Pardon to be granted in Counsel’s opinion was the client’s impressive work history after the conviction. Not only did the Client work steadily after being released from jail, the client started several businesses which did very well and sold them for a profit before launching into yet another successful career in a different field. Notably, the client was a single parent raising two children without help after leaving the abusive spouse. The children went on to college and other worthwhile endeavors.

Gubernatorial Pardons are in keeping with Western Culture’s pervading belief that we can redeem ourselves even after the most deplorable conduct. Pardons are especially pertinent today because the information age within which we live, can cause our criminal history information to be generally known and may lead to loss of employment, difficulty finding employment and at a minimum, embarrassment.

The procedure for Applying for a Pardon is to first find a competent lawyer. Will Bruzzo and the Law Offices of William W. Bruzzo has helped many clients navigate the Pardon Application process. Pardon Applications are governed by Penal Code Section 4852.01 and sequential. While the code permits an individual to apply for a Pardon as early as 7 years after being released from custody or probation/parole is terminated (whichever is earlier) the Department of Corrections will often not even consider an application until 10 years has passed. For individuals who live within the state of California a Certificate of Rehabilitation must first be filed with the court of the County within which the individual currently resides regardless of where the conviction occurred. Once a Certificate of Rehabilitation is granted by the local court it becomes an automatic Pardon Application and is sent from the Court to the Governor’s Office of Legal Affairs. If the individual lives outside the state but committed a crime in California, then they are not eligible to file a Certificate of Rehabilitation and must go directly to a Gubernatorial Pardon. Contact the Law Offices of William W. Bruzzo at (714) 547-4636 for a free consultation to determine if you are eligible for a Pardon.

Sgt Bowe Bergdahl could face court martial for the crime of Desertion for leaving his post in June 2009. At that time he was a private first class at Forward Operating Post Mest in eastern Afghanistan. Mest, a small base surrounded by Taliban fighters, had been established and maintained by the platoon he was in. The soldiers were going to be rotated out the next day and travel to another base to take a rest from their post. But by that morning Bergdahl had left the base, leaving his rifle behind. According to Maj. Gen. Kenneth Dahl who led an investigation as to what happened to Bergdahl, Sgt. Bergdahl left his post in order to reach another base. Bergdahl believed that his platoon was in danger because of questionable leadership. He was hoping to reach a bigger base and explain his concerns to a General. However Maj. Gen. Dahl’s investigation uncovered that there were no known problems or issues to deem the platoon in danger from improper command. It seems that Sgt. Bergdahl’s concerns were unfounded. The post had been successfully built and maintained by the platoon and was considered a success. Also there was no General at the Forward Operating Base Bergdahl was hoping to get to. As such, Bergdahl would not have found a General present in order to report his concerns. Perhaps surprisingly, prior to leaving his unit Bergdahl was a respected solider and most of those interviewed who knew him were flummoxed by his leaving his post in the manner he did.

The investigation conducted by Maj. Gen. Dahl revealed that Sgt. Bergdahl had been captured 12 hours into his departure from Mest. Bergdahl’s unit spent weeks searching for him, as they would for any missing soldier. Reports that soldiers had died trying to locate Bergdahl turned out to be false. And while they searched for him, he in turn tried to escape the Taliban. The investigation confirmed that he tried to escape at least 12 times. In one of those attempts he managed to escape for nine days before running out of food and water and being recaptured. In all Bergdahl spent 5-years as a prisoner to the Taliban; he suffered permanent injury to his legs and spine as a result of being a prisoner and is now physically unfit to serve.

Currently, his case is in military court before an Article 32 Officer which is the civilian equivalent of a probable cause hearing or preliminary hearing in California. The Article 32 Officer will determine if the Uniform Code of Military Justice (UCMJ) has been violated and if so he will recommend that the charges be forwarded to a Court-martial. While there seems little doubt that Bergdahl did violate the law by leaving without permission, it may also be determined that his 5 years in captivity having sustained permanent physical disability from that captivity, may be deemed sufficient punishment. At that time the Commanding General may permit Bergdahl to plead guilty to being Away Without Leave (AWOL) and discharge him immediately from the service; or the Commanding General can forego a court-martial altogether and administratively separate Bergdahl with an Other Then Honorable Discharge. He may also send Bergdahl to court-martial which could result in years in custody if he is found guilty. The Commanding General has complete discretion in how the matter proceeds.

I have practiced law for over 20 years and during that time I have seen many people get arrested for a crime who end up never going to court because the District Attorney declines to file the charge. There are many reasons for this. The most common is that the police may have probable cause to arrest someone for a crime but once they submit their reports to the prosecution, the prosecutor may decide that they cannot prove the case beyond a reasonable doubt. This is because the police threshold for arresting someone (probable cause) is much lower than the threshold needed for a jury to find someone guilty (beyond a reasonable doubt). Regardless, while the individual does not face a charge in court, the arrest remains on their record.

The competitive nature of the current job market coupled with the ease with which potential employers can find information on potential employees makes it imperative to have as clean a record as possible. This may also include removing any arrests.

Fortunately, California has a process for removing arrests through Penal Code Section 851.8. This law directs that if a Petition under that section is granted the record of arrest must be sealed for three years from the date of the arrest and thereafter the record of arrest must be destroyed. The Petition is known as a Petition to Seal and Destroy Arrest Records and as a Factual Innocence Motion.

Penal Code Section 851.8 states that in order for this Petition to be granted the court must find that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. Reasonable cause as used here by the Penal Code is the same as probable cause and refers to the relatively low legal standard the police must have to arrest someone.

In practice however, in situations where the case was never filed, the District Attorney usually does not oppose these motions even if there was reasonable cause to believe the arrestee was committing a crime. I believe that the reason the District Attorneys rarely oppose these Petitions is that they see little sense in litigating the matter when a decision was already made that the evidence was insufficient to prove the case.

I have filed many Petitions to Seal and Destroy Arrest Records and in almost every case reasonable cause existed to make the arrest. However, in virtually every case I have handled the District Attorney either did not oppose the matter or the Judge granted my Petition over the District Attorney’s objection and I have won the Petition!

The rare nature of these Petitions and the indifferent nature of the District Attorney and the Court often plays a part in their being successfully granted. Notably, these Petitions can also be filed after a finding of Not Guilty by a Jury or Judge.

These Petitions should be filed within two-years of the arrest but in practice and in the interests of justice I have filed such Petitions many years after the arrest and they have still been granted.

Filing a Petition to Seal and Destroy Arrest Records is a two-step process. The Petition must first be served on the arresting police agency who also have the power to grant or decline the request. If they grant the request then the arrest record will be sealed and destroyed and the process is over. It is rare that a police agency grants such a request although it does occur. If the Police agency declines the request or does not respond within 60 days, then the Petition is filed with the court and the matter goes before a Judge. The District Attorney must also be served with the Petition and be permitted to weigh in on the matter. The Law Offices of William W. Bruzzo and William W. Bruzzo, Esq. have successfully represented many clients in successful Petitions to Seal and Destroy Arrest Records / Factual Innocence Motions. Criminal Law Updates by the Law Offices of William W. Bruzzo (714) 547-4636.