Filed 9/16/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078629
Plaintiff and Respondent,
(Super. Ct. No. BF130577A)
v.
D.C., OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Law Office of Bill Slocumb & Associates and William H. Slocumb for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Ward A. Campbell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant D.C.1 petitioned to seal his arrest record pursuant to Penal Code section
851.91 after pleading no contest to possession of a controlled substance and successfully
1Rule8.90(b) of the California Rules of Court directs us to “consider referring to” certain
individuals “by first name and last initial, or, if the first name is unusual or other circumstances
completing treatment and probation pursuant to section 1210.1. (Undesignated statutory
references are to the Penal Code.) The trial court denied the petition and held defendant
was ineligible for relief under section 851.91. On appeal, defendant contends he qualifies
for relief under section 851.91 as a person whose arrest did not result in a conviction
because his arrest and conviction are deemed never to have occurred pursuant to section
1210.1, subdivision (e)(1).
We affirm the court’s order denying defendant’s petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, the People charged defendant with felony possession of a controlled
substance in violation of Health and Safety Code section 11350, subdivision (a) (count 1)
and misdemeanor destruction of evidence in violation of Penal Code section 135 (count
2). The district attorney noted defendant was ineligible for drug diversion pursuant to
section 1000 because he had a prior conviction for a controlled substance offense.
Pursuant to a negotiated plea agreement, defendant pled no contest to count 1. The court
suspended imposition of judgment, placed defendant on probation pursuant to section
1210.1 subject to certain terms and conditions, and dismissed count 2.
Defendant completed a drug treatment program and the other terms of his
probation. The court terminated probation and set aside defendant’s conviction and plea
of nolo contendere on count 1. It ordered a plea of not guilty to be entered pursuant to
section 1210.1 and dismissed count 1.
Eight years later, in 2018, defendant filed a petition to seal his arrest records
related to the 2010 charge pursuant to section 851.91. The court denied the petition,
stating it did not believe “someone who went through the Prop 36 [probation] program is
eligible” for relief under section 851.91. Defendant appeals the denial of the petition.
would defeat the objective of anonymity, by initials only,” in order to protect those individuals’
privacy. The list of people to whom this rule applies includes “[p]ersons in other circumstances
in which personal privacy interests support not using the person’s name ….” (Cal. Rules of
Court, rule 8.90(b)(10).) In this opinion, we refer to defendant by his first and last initials, given
that the sole purpose of this appeal is to attempt to vindicate a statutory privacy right.
2.
DISCUSSION
Defendant argues the court erred in concluding he is ineligible to have his arrest
records sealed pursuant to section 851.91.
I. Standard of Review
This case requires us to consider the interaction between a statutory scheme
enacted by the Legislature, section 891.51, and one enacted by the public, section 1210.1
(enacted through Prop. 36). (See People v. Jimenez (2020) 9 Cal.5th 53, 61.) The
interpretation of the scope of these statutory schemes is a question of law we review de
novo. (Ibid.) In conducting our review, “‘“our fundamental task is ‘to ascertain the
intent of the lawmakers so as to effectuate the purpose of the statute[s].’”’ [Citation.]”
(People v. Tran (2015) 61 Cal.4th 1160, 1166.)
“We look first to ‘“the language of the statute, affording the words
their ordinary and usual meaning and viewing them in their statutory
context.”’ [Citation.] We must construe statutory language in context,
bearing in mind the statutory purpose, and giving effect to the intended
purpose of an initiative’s provisions. [Citations.] We may also consider
extrinsic sources, ‘such as an initiative’s election materials, to glean the
electorate’s intended purpose.’” (People v. Jimenez, supra, 9 Cal.5th at p.
61.)
II. Applicable Law
A. Proposition 36 and Section 1210.1
Following the enactment of Proposition 36, the Substance Abuse and Crime
Prevention Act of 2000, which took effect July 1, 2001, a defendant who is convicted of a
“nonviolent drug possession offense” must receive probation and diversion into a drug
treatment program and may not be sentenced to incarceration as an additional term of
probation. (People v. Canty (2004) 32 Cal.4th 1266, 1272–1273; see § 1210.1, subd. (a).)
To that end, Proposition 36 enacted section 1210.1, subdivision (a), which provides in
relevant part, subject to the exceptions set forth, “‘any person convicted of a nonviolent
drug possession offense shall receive probation. As a condition of probation the court
3.
shall require participation in and completion of an appropriate drug treatment program.’”
(People v. Canty, supra, at p. 1275.)
Section 1210.1, subdivision (e)(1) provides for a defendant’s conviction to be “set
aside” and, with certain exceptions, for the arrest and conviction to be “deemed never to
have occurred” if the defendant successfully completes drug treatment and complies with
the terms of probation. It states:
“[A]ny time after completion of drug treatment and the terms of probation,
the court shall conduct a hearing, and if the court finds that the defendant
successfully completed drug treatment, and substantially complied with the
conditions of probation, … the conviction on which the probation was
based shall be set aside and the court shall dismiss the indictment,
complaint, or information against the defendant. In addition, except as
provided in paragraphs (2) and (3), both the arrest and the conviction shall
be deemed never to have occurred. The defendant may additionally
petition the court for a dismissal of charges at any time after completion of
the prescribed course of drug treatment. Except as provided in paragraph
(2) or (3), the defendant shall thereafter be released from all penalties and
disabilities resulting from the offense of which he or she has been
convicted.” (§ 1210.1, subd. (e)(1), italics added.)
Paragraph (2) of section 1210.1, subdivision (e) provides “[d]ismissal of an
indictment, complaint or information pursuant to paragraph (1) does not permit a person
to own, possess, or have in his or her custody or control any firearm capable of being
concealed upon the person or prevent his or her conviction under Chapter 2 (commencing
with Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1210.1, subd. (e)(2).)
And paragraph (3) of section 1210.1, subdivision (e) provides:
“Except as provided below, after an indictment, complaint, or information
is dismissed pursuant to paragraph (1), the defendant may indicate in
response to any question concerning his or her prior criminal record that he
or she was not arrested or convicted for the offense. Except as provided
below, a record pertaining to an arrest or conviction resulting in successful
completion of a drug treatment program under this section may not, without
the defendant’s consent, be used in any way that could result in the denial
of any employment, benefit, license, or certificate. [¶] Regardless of his or
her successful completion of drug treatment, the arrest and conviction on
which the probation was based may be recorded by the Department of
4.
Justice and disclosed in response to any peace officer application request or
any law enforcement inquiry. Dismissal of an information, complaint, or
indictment under this section does not relieve a defendant of the obligation
to disclose the arrest and conviction in response to any direct question
contained in any questionnaire or application for public office, for a
position as a peace officer as defined in Section 830, for licensure by any
state or local agency, for contracting with the California State Lottery, or
for purposes of serving on a jury.” (§ 1210.1, subd. (e)(3).)
B. Section 851.91
Section 851.91, enacted by the Legislature through Senate Bill No. 393 (2017–
2018 Reg. Sess.) (Senate Bill 393) and effective as of January 1, 2018, provides for the
sealing of arrest records in certain situations when the arrest did not result in a conviction.
It provides in pertinent part:
“(a) A person who has suffered an arrest that did not result in a
conviction may petition the court to have his or her arrest and related
records sealed, as described in Section 851.92.
“(1) For purposes of this section, an arrest did not result in a
conviction if any of the following are true: [¶] … [¶]
“(B) The prosecuting attorney filed an accusatory pleading based on
the arrest, but, with respect to all charges, one or more of the following has
occurred:
“(i) No conviction occurred, the charge has been dismissed, and the
charge may not be refiled.
“(ii) No conviction occurred and the arrestee has been acquitted of
the charges.
“(iii) A conviction occurred, but has been vacated or reversed on
appeal, all appellate remedies have been exhausted, and the charge may not
be refiled. [¶] … [¶]
“(e) If the court grants a petition pursuant to this section, the court
shall do all of the following: [¶] … [¶]
“(2)(A) Issue a written ruling and order to the petitioner, the
prosecuting attorney, and to the law enforcement agency that made the
arrest that states all of the following:
5.
“(B) The record of arrest has been sealed as to petitioner, the arrest
is deemed not to have occurred, the petitioner may answer any question
relating to the sealed arrest accordingly, and the petitioner is released from
all penalties and disabilities resulting from the arrest, except as provided in
Section 851.92 and as follows:
“(i) The sealed arrest may be pleaded and proved in any subsequent
prosecution of the petitioner for any other offense, and shall have the same
effect as if it had not been sealed.
“(ii) The sealing of an arrest pursuant to this section does not relieve
the petitioner of the obligation to disclose the arrest, if otherwise required
by law, in response to any direct question contained in a questionnaire or
application for public office, for employment as a peace officer, for
licensure by any state or local agency, or for contracting with the California
State Lottery Commission.
“(iii) The sealing of an arrest pursuant to this section does not affect
petitioner’s authorization to own, possess, or have in his or her custody or
control any firearm, or his or her susceptibility to conviction under Chapter
2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6, if the
arrest would otherwise affect this authorization or susceptibility.
“(iv) The sealing of an arrest pursuant to this section does not affect
any prohibition from holding public office that would otherwise apply
under law as a result of the arrest.”
Notably, Senate Bill 393, which enacted section 851.91, also amended the
language in sections 1000.4 and 1001.9 to provide for the sealing of arrest records after a
defendant successfully completes a diversion program pursuant to those chapters. (See
Senate Bill 393, §§ 5–6.) As amended, section 1000.4 states in relevant part: “Upon
successful completion of a pretrial diversion program, the arrest upon which the
defendant was diverted shall be deemed to have never occurred and the court may issue
an order to seal the records pertaining to the arrest as described in Section 851.92.”
(§ 1000.4, subd. (a) [italicized language added by Sen. Bill 393].) As amended, section
1001.9 states in relevant part: “Upon successful completion of a diversion program, the
arrest upon which the diversion was based shall be deemed to have never occurred and
the court may issue an order to seal the records pertaining to the arrest as described in
Section 851.92.” (§ 1001.9, subd. (a) [italicized language added by Sen. Bill 393].)
6.
However, Senate Bill 393 did not modify the language of section 1210.1 or otherwise
address this provision.
III. Analysis
Defendant contends the court erred in concluding he is ineligible for relief under
section 851.91. He contends his conviction is “deemed never to have occurred” pursuant
to section 1210.1, subdivision (e)(1) since he successfully completed probation and drug
treatment. Accordingly, he argues he meets section 851.91, subdivision (a)(1)(B)(i)’s
requirement that “[n]o conviction occurred, the charge has been dismissed, and the
charge may not be refiled.” In support, he contends when the Legislature enacted section
851.91, it was aware of and did not amend the language in section 1210.1 providing
“both the arrest and the conviction shall be deemed never to have occurred.” The People
respond that the court properly denied the petition because section 851.91 only applies to
arrestees who were never convicted; but here, defendant was validly convicted. They
further contend section 851.91 cannot apply to section 1210.1, which was enacted by
initiative (Prop. 36), because only the electorate can amend an initiative unless the
initiative provides for legislative amendment. They note, “Proposition 36 only allows
legislative amendment if the amendment ‘furthers’ Proposition 36 and is consistent with
Proposition 36’s purposes” and, they argue, section 851.91 “misses the mark.” They
assert a defendant who benefits from Proposition 36 must still reveal the arrest and
conviction in connection with seeking public positions, public licenses, state lottery
contracts, and when they are called for jury duty. Whereas section 851.91 does not
require persons who seal their arrest records under its provisions to disclose their prior
arrest when they are questioned as a prospective juror; so, section 851.91 “does violence
to the specific language of Proposition 36.” Finally, they assert the Legislature did not
intend for section 851.91 to repeal section 1210.1 by implication. We agree with the
People; in light of defendant’s no contest plea, we cannot conclude “no conviction
7.
occurred” such that defendant should be entitled to relief under section 851.91,
subdivision (a)(1)(B)(i).
Contrary to defendant’s argument, his arrest did result in a conviction in light of
his no contest plea. A plea of guilty or no contest amounts to an admission of every
element of the crime and is the equivalent of a conviction. (See People v. Wallace (2004)
33 Cal.4th 738, 749; People v. Mendez (1999) 19 Cal.4th 1084, 1094–1095; People v.
Jones (1995) 10 Cal.4th 1102, 1109, disapproved on other grounds in In re Chavez
(2003) 30 Cal.4th 643, 656; People v. Borland (1996) 50 Cal.App.4th 124, 128.)
Though that conviction was later set aside and “deemed never to have occurred”
pursuant to section 1210.1, subdivision (e)(1), it still exists for some purposes. (See
§ 1210.1, subds. (e)(2)–(3); People v. Zeigler (2012) 211 Cal.App.4th 638, 657 [“a
Proposition 36 dismissal is not a dismissal for all purposes”]; People v. Delong (2002)
101 Cal.App.4th 482, 490 [“a conviction for a nonviolent drug possession offense is
‘deemed not to have occurred’ for some purposes but not others, and a defendant is
released from some but not all disabilities resulting from the conviction”]; see also
People v. E.B. (2020) 51 Cal.App.5th 47, 57, petn. for review pending, petn. filed Aug. 3,
2020 [holding trial court’s acts of setting aside conviction and ordering a not guilty plea
to be entered after defendant successfully completes probation “does not ‘obliterate the
fact’” of the conviction as necessary to conclude the conviction was vacated as § 891.51
requires].) Indeed, dismissal of the indictment, complaint or information does not permit
a defendant to “own, possess, or have in his … custody or control any firearm capable of
being concealed upon the person or prevent his or her conviction under Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1210.1, subd.
(e)(2).) Also, “the arrest and conviction on which the probation was based may be
recorded by the Department of Justice and disclosed in response to any peace officer
application request or any law enforcement inquiry.” (§ 1210.1, subd. (e)(3).) And a
defendant must still “disclose the arrest and conviction in response to any direct question
8.
contained in any questionnaire or application for public office, for a position as a peace
officer as defined in Section 830, for licensure by any state or local agency, for
contracting with the California State Lottery, or for purposes of serving on a jury.”
(Ibid.)
While defendant’s arrest and conviction are deemed never to have occurred for
most purposes, we cannot conclude this is the equivalent of a defendant who was arrested
but never convicted. Rather, because defendant’s arrest and conviction still exist for
some purposes, he is in a markedly different position from someone who was never
convicted at all. Accordingly, we cannot conclude he falls within the purview of section
851.91, subdivision (a)(1)(B)(i). Thus, we affirm the trial court’s order concluding
defendant is ineligible for relief under that section.2 (See People v. Mazumder (2019) 34
2Notably,our sister court recently considered and rejected an alternative basis for relief
which defendant does not raise here. In People v. E.B., the defendant argued the trial court’s acts
of setting aside a conviction and ordering a not guilty plea to be entered after he successfully
completed probation amounted to a “vacation” of the conviction. (People v. E.B., supra, 51
Cal.App.5th at p. 55.) In that case, the defendant pleaded guilty to oral copulation with a minor
(former § 288a, subd. (b)(1)) and successfully completed probation. (People v. E.B., supra, at p.
52.) The trial court permitted the defendant to withdraw his guilty plea and dismissed the
complaint under section 1203.4. (E.B., at p. 52.) It later granted the defendant’s request to
reduce the offense to a misdemeanor. (Ibid.) Seven years later, the defendant filed a petition to
seal his arrest records under section 851.91 and the court denied the petition, concluding section
851.91 did not entitle the defendant to relief. (E.B., at p. 52.)
The Court of Appeal affirmed the denial of the petition and concluded, in relevant part,
that the trial court’s acts did not “obliterate the fact” of the conviction as would be necessary to
conclude the conviction was vacated as section 891.51 requires. (People v. E.B., supra, 51
Cal.App.5th at pp. 57–58.) Rather, like section 1210.1 at issue here, section 1203.4 requires the
disclosure of the conviction in certain instances, and the dismissal does not permit a defendant to
own, possess, or have in his custody or control a firearm. (E.B., supra, at p. 54; § 1203.4, subd.
(a)(1)–(2).) Thus, the court held, in contrast to a true vacation of a conviction, “section 1203.4
makes clear that a dismissed conviction still exists for purposes of imposing collateral
consequences for that conviction. In short, the plain language and effect of the relief provided by
section 1203.4 is not the equivalent of vacation of a conviction.” (E.B., at pp. 57–58.) The E.B.
court also rejected the argument that precluding the defendant from sealing his arrest records
resulted in a new “penalty and disability” contrary to section 1203.4, subdivision (a)(1)’s
provision that releases a defendant “‘from all penalties and disabilities resulting from the offense
of which he or she has been convicted.’” (E.B., at p. 58.) Relying upon People v. Sharman
(1971) 17 Cal.App.3d 550, the E.B. court held the public’s access to records is not a penalty or
disability; rather, “‘[a]ny claimed penalty or disability … arises from [the] use of the information
9.
Cal.App.5th 732, 737 [dismissal after defendant successfully completes probation does
not entitle defendant to seal and destroy arrest records or finding of factual innocence
pursuant to § 851.8, subd. (c) because a “conviction has occurred” as a result of guilty
plea]; see generally People v. E.B., supra, 51 Cal.App.5th at pp. 58–59 [§ 1203.4 frees
former probationer from further “penalties and disabilities” resulting from conviction but
it does not vacate or void conviction such that defendant may have his arrest records
sealed pursuant to § 851.91]; People v. Sharman, supra, 17 Cal.App.3d at p. 552
[preclusion from record sealing is not a “penalty or disability” and § 1203.4 does not
create affirmative right to have arrest records sealed].)
We reject defendant’s sole contention.
DISPOSITION
The court’s order denying defendant’s petition to seal his arrest records is
affirmed.
PEÑA, J.
WE CONCUR:
HILL, P.J.
DETJEN, J.
to the disadvantage of the offender’” and is imposed by the person possessing and using the
information, not by the state. (E.B., at p. 59.) Accordingly, “in releasing an offender from
‘penalties and disabilities,’ section 1203.4 does not create any affirmative right to have arrest
records sealed.” (Ibid.) Because defendant does not raise this argument here, we do not address
it.
10.