The reader of this summary may question why our office would post a summary of a failure because that certainly would reflect poorly upon our legal skills. Our reason, however, for posting this summary is to demonstrate how judges are interpreting various factual scenarios that the legislators who wrote Penal Code §§ 851.91 and 851.92 allowing sealing and destroying could not have anticipated.
As a result, judges are required to interpret the law. Sometimes, as here, the judge gets it wrong and by summarizing this, we wish to caution our readers that practice of law can be painful and frustrating. Our courts are not perfect. In fact, they are far from perfect, although most judges strive for that standard.
In April 2019, our client was arrested by the Los Angeles Sheriff’s Department (Carson Station) for an alleged assault with a deadly weapon at his girlfriend’s home in Carson.
Our client, age 53, and his 18-year-old stepson had been arguing about the relationship our client had with the younger man’s mother. Our client’s stepson then threatened to throw our client out of the apartment if he did not end the relationship with his mother.
Our client agreed, but the stepson continued to harass our client, even attempting to punch him in the face. The younger man then approached our client aggressively so our client, anticipating another punch, raised his arms to block the punches towards his face. The stepson was angry he was unable to strike our client, so he left the home and stated he was going to call the police, which he then did.
Our remained in the apartment when law enforcement arrived. Officers asked him to step outside. The officers then arrested our client for misdemeanor assault with a deadly weapon (Penal Code § 245(a)(1)) without asking our client any questions regarding about what took place. Our client did not physically hurt or injure his stepson.Compton Courthouse
Our client then stayed in jail for three days before being released on his own recognizance. He was told that if a case were filed against him, he would receive a letter in the mail notifying him of this and advising him when to come to the Compton Superior Court for his arraignment.
Finally, one day, a letter arrived. The letter did not tell him that a case against him had been filed. Instead, the head District Attorney wrote to tell him that a case against him was rejected for filing (a “DA Reject”) due to insufficient evidence. The letter provided a DA reject number.
While this was certainly good news, our client had, since the incident, moved out of the apartment anyways, to get away from his stepson. He rented a room at his friend’s house.
Due to the arrest on his criminal record, he was denied from renting an apartment.
Our client then called us to ask if he could have the record of the arrest removed from his criminal history because no case was filed. Greg spoke with the client and listened to him describe what had happened and that his arrest was for a misdemeanor violation of § 245(a)(1) and over a year had passed. Therefore, the statute of limitations had expired for filing such a case.
Greg told the client that while a three-year statute of limitations would apply if this case were a felony, his case was governed by the one-year statute of limitations. Therefore, he was qualified for relief under §§ 851.91 and 851.92.
Penal Code § 851.91(a) states, “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.” Here, our suffered an arrest for a misdemeanor that did not result in a conviction when the Compton District Attorney’s Office rejected filing a Complaint against him after reviewing the facts that led to the arrest in April of 2019. It rejected the case based on insufficient evidence.
Moreover, our client’s record did not show a “pattern” of violence that would disqualify him from relief as specified in § 851.91(C)(2)(A)(i)(I). “Pattern” is defined as “two or more convictions or five more arrests, for separate offenses occurring on separate occasions with three years from at least one of the other convictions or arrests.” 851.91(c)(2)(A)(III)(ii).
Our office thus filed a petition for an order sealing the record of the arrest and destroying any court records if such exist. The judge denied the petition without even a hearing, writing that the three-year statute of limitations applied and thus the petition was barred as being filed too early, as only 18 months had passed since the arrest.
Our office then filed a request for a hearing on the petition and the judge set a hearing, at which time he reiterated his position that 245(a)(1) had a three-year statute of limitations for a felony charged under this section and three years had not passed.
Greg explained that the arrest was for a misdemeanor violation of 245(a)(1), not a felony level violation, so the one-year statute would apply and that had expired. Moreover, no felony charge could be filed anyways because the DA’s office found insufficient evidence to file any case based on the arrest.
The judge disagreed and affirmed his earlier ruling.
This summary is brought as a cautionary tale of how new laws are often interpreted in ways that some may find incorrect, as this case epitomizes. Sadly, our client did not have the financial ability to appeal the ruling, so he will wait until the three-year mark passes from the arrest and petition to seal according to the interpretation this judge applied.
For more information about sealing and destroying an arrest report or court file under Penal Code §§ 851.91 and 851.92, please click on the following articles: