As the following summary exemplifies, sometimes those who try are rewarded.
More specifically, in 2011 our client was entered into a Prop 36 drug treatment program through the Lancaster Superior Court and entered a “no contest” plea to a violation of Health & Safety Code § 11377(a) (“Possession of a Controlled Substance”) as part of the program. The client then successfully completed the program and his plea was withdrawn and the case dismissed under Penal Code § 1210.1. The record of the possession case remained on the client’s record, however, preventing the client from employment in multiple situations.
In 2021, he then called our office asking if he could have the record “cancelled.” After Greg Hill spoke with the client for a few minutes, Greg understood that the client sought to have the record of the arrest and the criminal case deleted or removed from his record, or “sealed” under Penal Code § 851.91 and § 851.92 (the CARE Act).
Greg sadly told the client that a recent published decision from the Fifth Appellate District in Fresno, In re D.C. (opinion dated September 16, 2020), a juvenile case, held that this could not be done after a Prop 36 program completion The Kern County Superior Court judge in the case was Michael G. Bush.
Greg commented that many judges, however, did not understand this area of the law and judges, after all, occasionally make mistakes.
Consequently, our client asked us to try anyways and we did, with the client acknowledging that the Lancaster judge most likely would deny the petition if the judge understood and followed the latest developments in the law.
With Alex Griggs of our office appearing in the Lancaster courthouse, the judge granted the petition, much to the client’s satisfaction, proving that judges often overlook recent developments in the law.
The same client had a second matter in which he also sought sealing, but only for an arrest that did not manifest itself in a criminal case filing. In 2007, our client, then just age 22, had been arrested in Lancaster for being under the influence of a controlled substance, a violation of Health & Safety Code § 11550(a).
Under these facts, the client’s right to an order of sealing was clear. 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.” In our client’s case, his arrest did not even result in a case filing.
The client’s arrest, moreover, qualified under the statute. Penal Code § 851.91(1) clearly states what constitutes an arrest that does not result in a conviction: “Arrests that do not result in convictions are where: . . . (A) The statute of limitations has run on every offense upon which the case was based and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest . . .”
As in the client’s Prop 36 matter, our office filed a second petition for an order of sealing, attaching a short memorandum of points and authorities to the judicial council form that is required to be filed as the petition. The memorandum of points and authorities included a brief recitation of the facts, a presentation of the applicable law and the exceptions thereto (which we explained were not applicable) and a brief declaration from our client, explaining why he sought an order of sealing and describing his employment and family status. The declaration included exhibits that showed his latest pay stub (to show he was employed), a family photo and a few letter of support, attesting to our client’s reliability at work, truthfulness and sense of responsibility.
The judge handling this second petition also granted this petition. Alex Griggs of our office appeared for the hearing in the Lancaster Superior Court for this petition as well.
The client was happy with these results.
For more information about a petition to seal and destroy, please click on the following articles: