A conviction set aside  pursuant to section 1210.1, subdivision (e)(1), still exists for some purposes and the arrest cannot be sealed

People v. D.C. (Cal. Ct. App., Sept. 16, 2020, No. F078629) 2020 WL 5542090, at *1–5

Summary:

D.C. petitioned to seal his arrest record under Penal Code section 851.91 after pleading no contest to possession of a controlled substance and successfully completing treatment and probation pursuant to section 1210.1.the trial court ruled that he was ineligible for relief under section 851.91. D.C. appealed claiming 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).

The Court of Appeal  affirmed the court’s order denying defendant’s petition.

Facts:

In 2010, the People charged D.C. 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). D.C. pled no contest to count 1. The court suspended imposition of judgment, placed defendant on probation and dismissed count 2.

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.

In 2018, D.C. 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.

Applicable Law

Proposition 36 and Section 1210.1

Proposition 36, the Substance Abuse and Crime Prevention Act of 2000,  took effect July 1, 2001. It requires that 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, 14 Cal.Rptr.3d 1, 90 P.3d 1168; see § 1210.1, subd. (a).) Proposition 36 enacted section 1210.1, subdivision (a), which provides in relevant part, ‘any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.’  (People v. Canty, supra, at p. 1275, 14 Cal.Rptr.3d 1, 90 P.3d 1168.)

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 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).)

851. Section 851.91

*3 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:

“(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].) However, Senate Bill 393 did not modify the language of section 1210.1 or otherwise address this provision.

D.C. 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 occurred” such that defendant should be entitled to relief under section 851.91, subdivision (a)(1)(B)(i).

Reasoning:

D.C.’s 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, 16 Cal.Rptr.3d 96, 93 P.3d 1037; People v. Mendez (1999) 19 Cal.4th 1084, 1094–1095, 81 Cal.Rptr.2d 301, 969 P.2d 146; People v. Jones (1995) 10 Cal.4th 1102, 1109, 43 Cal.Rptr.2d 464, 898 P.2d 910, disapproved on other grounds in In re Chavez (2003) 30 Cal.4th 643, 656, 134 Cal.Rptr.2d 54, 68 P.3d 347; People v. Borland (1996) 50 Cal.App.4th 124, 128, 57 Cal.Rptr.2d 562.)

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, 149 Cal.Rptr.3d 786 [“a Proposition 36 dismissal is not a dismissal for all purposes”]; People v. Delong (2002) 101 Cal.App.4th 482, 490, 124 Cal.Rptr.2d 293 [“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, 264 Cal.Rptr.3d 678, 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].)

An arrest that is deemed never to have occurred for most purposes is not 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 Cal.App.5th 732, 737, 246 Cal.Rptr.3d 450 [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, 264 Cal.Rptr.3d 678 [§ 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, 95 Cal.Rptr. 134 [preclusion from record sealing is not a “penalty or disability” and § 1203.4 does not create affirmative right to have arrest records sealed].)

The court’s order denying defendant’s petition to seal his arrest records is affirmed.